Amicus Curiae Brief — United States v. United States Dist. Court for Eastern Dist. of Mich.

“48)5 ° Z: ’

DEC 16 197)

R, CLERK

Sor | Court of he United tes

7 No. 70-153

sineiterilteniniac

UNITED STATES OF. Se

— °

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN, °

- - . SOUTHERN DIVISION

and

HONORABLE DAMON I. KEITH,

7%

=

08 WHIT OF CHRORAR TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH GRCUIT

ae | ! ,

BRIEF OF THE INTERNATIONAL UNION,

‘UNITED AUTOMOBILE,: AEROSPACE ~-

AND AGRICULTURAL IMPLEMENT 7

WORKERS OF cis ape

AS AMI

- _IN- SUPPORT OF

RESPONDENTS .

—-—.

International Union, United Automobile,

- Aerospace and Agricultural Implement

Workers of America (UAW)...

_ By: Stephen I. Schlossberg =

M. Jay Whitman

8000 East Jefferson ea

‘Detroit, Michigan 48214

(senate Boel 6 Reed Gor 1036 Beaubien St., Detroit. Michigan 48226

: WO. 2-8745—WO. 2-8732

.

ns, ge De ieee eee

TABLE OF CONTENTS =

je, ees. Page

Table of Authorities: .......,..26.06+ isakes ee

Interest of Ce ee er ree palit aren ee

Questions Presented ...:........ Me Ons See eT a S

Summary of Argument............. Maier

Introduction’ eee a. Se ce, MAM earn a ts

Kigtiatieb ced: ie Sete Baten a Rete ee

a * The goversnnend is dainiing an area “within

_ which the Executive may, without any meaning- ~

ful . safeguards, eavesdrop cance on

_ whomever they: see fit.. ee Gaigs Wass s &

A. Unrestricted eléctronic surveillanice poses a

clear threat to constitutional rights........ )

_B. The government: claims an exception. from:

any meaningful Safeguards . Ng 5 Sb wk teiee |

il. The’ government. seeks to avoid normal

Fourth Amendment safeguards re a

a. But: reliance on the balancing test of .°

* the administrative — area is mis-

aa To use a balancing test here is to let

the’ government judge its own case,

rendering Fourth Amendment guar-

_anties illusory ...... a eee eet 5

18

ce. Nor may the government bootstrap -

_ itself into the foreign intelligence ex-

2 ception with. unsubstantiated i insinua-*_

‘tions - a a ies Bao ices ;

—=—-_

22

ii.

* (tj The government is attempting to

. bootstrap itself into the sabia

intelligence exception beeen eeees

(2) Evy assuming arguendo @.: |

ie domestic radicals are ‘‘interre-

lated” with foreign agents,*this

ease does not fall within the for- . .

elgn intelligence exception iveses

a.- Nor do the years of national security

surveillance before Katz create any

‘exception to the-Fourth Amendment

(1) It is* fallacious .to acai an

“ought” from an STB". ede ee ee,

(2) Surveillance practices eo

‘Katz are no evidence of constitu-:

tional permissibility today..... “:

. No other meaningful safeguards have

been" Suggested by Petitioner. peewee se

a. Approval by the —— of.

fers no protection ered Chris te cis

: b. Fact that ‘Attorney General may. be

~ answerable, through President, to the

People is no: protection. seat eee eee ;

: (1) The People. will “have no way of a

‘knowing about national security _

surveillances ..... ashe bes coe he =

_ . (2) The danger that. the President

may be answerable to the People

- is the very reason for the Fourth’

Amendment and approval by an”

—— merry op me

2 y | c. After-the-fact judicial review fot arbi- |

trariness. is no Los eacenate peregees

“Th In the absence of ineaningful safeguards, the

_ \danger of abuse i is constitdtionally intolerable

A. The technological sophistication of modern

electronic eavesdropping itself raises grave

doubts about. the ability of'even the Attor-

ney General to detect or. control abuse of”

surveillance Weiss ee RA ase ass

. Recent histery indicates that the danger of.

- ° abuse is substantial..................+.-.

2 The F.BE. has willfully disregarded the

; requirement of .prior Attorney General -

approval eas Se be res eas veal is

. 2. Experience - indicates that practically :

“anyone can be regarded as a fit subject

. of national security eurveltianes poe as A

. The government’s own brief is: ample: evi- .

| dence of danger of abuse, absent Fourth _

| Amendment safeguards Aa es ee eel a

i 1. To perceive abuse one must fully ievbe.

Oe

ciate the difference between what is the |

ease and what’ ought to be the case......

2. . Government's reliance on past practice :

I The only hope of preventing and controlling

__ abuse is to adhere to Fourth Amendment safe-

guards ote Cis Seige ces Vedas o «anaes kanes

A. Ap oval of an. independent inagistrate 8

fore surveillance eM... ue a ES ‘

- She review does not deny the. 'suthority.

the Attorney General to defend so-

ciety, it merely controls the methods used.

37

"of Alderman a Ea Srcadasss £ saliiek nike oe 7 6

ay. Palmer Raid period provides a,clear exainple_

of history: the government Ww vould doom us to ~

T relevan vant reapetis, the factual and Ve

La made by the government in that 7

| ve peTer are strikingly parallel to. those _ Poe,

a BOD 0k EPR ose inn fap sc ph ewss ee cess ao ee

Conclusion re eS eee ee a ceeereeenee ‘ibm Deeks vanes, 59

Alderman v. “United States, 304 US. 165 (i969)

, 7, 10, 41, 45, 46, 47, 48

Dees. Now York $88 US. 41 (1967)... piss Se

~ Boyd v. United States, 116 U.S)616 (1885).......0 > 10-

Camara v: Municipal Court, 387 U.S. 523 (1967)... I

Chicago & Southern ‘Airlines, Ine. v. Waterman -

: _ Steamship Corp., 333 U.S: 208 (1088) 06 Sk E: 25

‘Colonnade Catering Corp. v. United ns 397 U. S..

72 (1970) PEP Poa ss eo iA

- Coolidge v. New. Hampehire, ‘ US. 443 (gzi) See

: AiZ 16, 20, 29

Dennis ¥: United States, 384 Us - 855 (1966)..... oa

_ Federal. Bearings’ Co., 4 NLRB aoe (1957).,..:... =

Highway Trailer Co., 3 NLRB oo Lp RMNERGongmes °

Johnson v. United States, 333.U.S. 10 1938) ...°... 20,29 .

' Katz v. United States, 389 U.S. 347 Jo... 16, 28,40

Marcus _v. Property Search Warrant, 367 U.S. 717

(1961) ih, EE RSs elecacich eo detaevegeesWreees bees 4

a

a

Youngstown Sheet & Tube Co. v. oat 343 U. S,

‘United States Constitution’: fen

519 .(1952) ....... Ser ee veonaeeee 26:

‘ wk ‘ pe

: 5 4 ae

¢ ¥. “

F McDonald v. United Statés, 335, US. 451 (1948) .. (20 -

- New. York Times Co. v. United States, — US. —, 29° iced

(Kae. Od O88 CII) Nea. te ” aes

Olmstead v, United States, 277 U.S, 438 (1928)... -.6,9,40 > ¢

“Osborn vy. United. States, 385 U.S. 323 cares) at : os frog

Pearson v. Williams, 202 U.S. 281 (1906).°......... mE...

_ People-v. Fisher, 14 Wend. 9 (N.Y., ale eacyce sen

Stanford v. Texas, 379 U.S. 476 (1965). ../0....5...0° 1B

. Totten v. United States, 92 1.S..105 (1875)... ee ae —.

United States v. Carignan, 342 US. 36 (1951). >

¢ United States v. Clay, 430 F.2d 165 (CA 5; 1970):... 26

“United States -v. Curtis-Wright pitied oe ; 299 By 2

-U.S. 304 (1936)... seeeveWeleldecoe sleet. a. 9

: United: States v. ‘Kirschenblatt, 16 F. 2d 202 (CA 2,

Rc mae here Ue en ay ee pane tiie ©:

United States v. Robel, 389 US, 258 (1967) oo, SS :

Peay States v. United States District” — mk ;

— (CA;G, 1971). 2 oS eas. . 43 :

nar v. United States, 232 U.S. 383 (1913). 2:29. a o :

Wyman vy. James, ~ U.S. —; 27 L,ed. 2d 408 ee 5:

_ Yamataya v. Fisher, 189 US. (1903) . Pecsdivecs - 50, 51

SF de re Per ae ‘25, 26, 27,38, 39 i

First Amendment nertysersersssessasDipesess 13, 25-

Fourth Amendment io saute o> 2 6, 7, 13, 14, 15, 20, 21,

ae et 25, 30, 31, 41, 42, 45.

edie Crime Control and Safe Streets Act of 1968, :

: 18 USC. §25I0 ef Seq. eoss eee eees sees 1588 :

aes Other Sources : a

"Auerbach, Jerold &. Labor oud Sat The LaFol-

dette: Comaittec and thé New Deal (Bobbs Mer- :

3 a rill. ed., 1966)... os... 6. RP ER ES UES EN ie Sieg mee &

Brown, R. G., et al., “To the ‘Anerican ihe :

'’ port upon the Illegal Practices of nited .

. States Department! of Justice,” (NY: Ameer, wn

| " Ciyil Liberties Union, BOZO) ose eee tet eee sen l

- . Dickens, Charles, Hard Times (1854 ed.) . oe: “ “2D

Dowell, Eldridge F., A History of Criminal Syndicat

<a Legislation in the United States (1969). . 53:

- Douglas, W. 0., An Almanac of wane (Doubleday ae

* ijtees Mls MIMBY Sc can vn cc OS ee +9, 23,42

: ‘Foderalint No. 51 (Magison).. a ee BOAT ee Ree sae

Hart; H.-L. A., Concept of Law (Oxford ed., 1961). 45

Hume, David, A Treatise of Human Nature. (Claren~ : ee

WU OR SI reco in ee inn vices ins Remeeiie Fee 3

| Indianapolis, News, February, 21, 6, 35 f362 3

Locke, John, Geen’ Prceiine on. ‘Civil Government

reprinted in E. Barker, ed.; Social Contract GQ.

a), a ee NS S

38, 39.

= Navasky, Victor, Kennedy Justice (1971). ; 33,34, 35,35

‘Preston, William, Jr.;Aliens and Diseontacs. (1963) 50,54

_ Reuther, Walter, “ U.A.W.: Past, Present and Fu- -

ture,” 50 U. Va. L. Rev. 58. (1964). rec eke ‘ian

San Francisco Chronicle, December 24; 1917.... —

~ _San_Francisco Chronicle, Februaty 22, 1918......

we

‘Schwartz, Herman, “The ‘Legitimization—of lee

tronic Eavesdropping: Tlie Politics of “Law and |

Order’,” 6% Mich. L.. Rev. 455 (1988)... -.5.-.-

United States Senate, Committee on Education and

Labor, Industrial Espionage, Report ‘No. 46, -

. 75th Congress, 2d Session.(1987).........:....

_ Weber, ‘Max, The Theory of: Social and Economic -

Organization, A. M.-Henderson & T. . Patsons,

eds. (Oxford ed., 1947)..-...- ash as, ay

Zola, Emile, “‘J’acouse! .. -er: reprinted in The. Law.

ae Literature (Simon and Schuster ban, 1966) . .

xO

IN THE

Sem tot he itl Sats

| OCTOBER TERM, 1971

No.:70-153 es a

vee icunguinie see ee

| UNITED STATES DISTRICT COURT FOR THE - eae

» : EASTERN DISTRICT OF MICHIGAN, |

SOUTHERN DIVISION. ee

ian and. ee

— ‘HONORABLE DAMON J. KEITH,

_ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

eee c eee eee ee,

——.

; ‘BRIEF OF THE INTERNATIONAL UNION,

- UNITED AUTOMOBILE, AEROSPACE

_ AND AGRICULTURAL IMPLEMENT

Deshi: - OF AMERICA (UAW)

AS AMICUS

IN SUPPORT OF

ere RESPONDENTS

3 a

The filing of this brief-as amicus curiae has been \ Se

sented to by all the parties under Rule =~) of the —

— Court Rules.

13) /

~

The 1 UAW-i is an industrial union which, as. of eux:

_ 1971, répresents more than 1,350,000 workers in the auto-

mobile, agricultural implement, aerospace, and other in- |

dustries in North America. Of this. number early 1,

3000 members and their families are citizens of the :

ee United States, and as such are vitally intérested_in the-

7 preservation of gheir constitutional liberties. ._ :

* The\U.AW has a long tradition of defending the civil thee. :

- °°. ties of hot only our members but all Americans. - We realize

| that the union is the first, victim of authoritarianism, and .

. that geniune unionism ‘can flourish only in a democratic

' atmosphere where the rights of the individual are given

the high priority they deserve. Our past actions and our’

convention resolutions attest this commitment.*

But besides this desrorion to civil liberties, the UAW has _

| a particular interest i in the issues presented by the instant—

a 5 e CAW its members know f: from bitter. <p

‘As the late Walter Reuther put it in “UAW: Past, Present. and

” 50 U. Va. L. Rev. 58, 98 (1964):

; "ett AW sdthcakbia to: Abbie thik Gavi Waliitiec of ont mie”

‘bers and all Americans. Our financial support of ‘civil liberties’ or-

ganizations and our convention resolution make this abundantly |

‘clear. For instance, we were among the first

against McCarthyism, against whidr e racist formula of the

—__ MeCarran-Walter immigration law, and against the second clas

citizenship forced upon the Negro in “America. As participants

in the labor movement, we realize that ‘the free trade union is the |

"first victim of any dictatorship and that genuine- unionism can

EE Se SS eee eens Shee Oe Seer ee

eS ee. : ae

pe ; oan es pe Ee Bee

ba é Ae ke v ¢ i oy Pa Da

PS. ae ’ : hae : : d

3 |

- ence whit iti is te be spied pan? In the hot-too-distant neat as ee

political and economic opponents were labeling the- UAW

“subversive,” ‘‘dangerous,” and. a “threat to national se- a ie

, earity ;” then using these labels.as an exéuse to ride rough- 3

_ shod over our _precious civil liberties.* Because of this .

. experience the UAW is uniquely well aware of the serious * _

- threat to-our’ civil liberties posed by. the government’s posi-

tion in this case. . Present officers of the UAW have lived

through surveillance and other denials of basic rights. ‘They

_ know full well that the activities of the Justice Department -.

“in this ease have a chilling effect on the First Amendment

-

-' 2Jerold’ S. ‘Auerbach, LABOR’ AND LIBERTY: aw LaFOL-

LETTE COMMITTEE AND THE: NEW DEAL (Cotte Merrill ed;

1966) at 99:

- , “The Mieny of ielieudestion efforts by enbomobile workers

i Hint Michizan, froseted « paradigm of the destructiveness .

of industrial espionage. In 1934 the Federal Union of me

‘Workers boasted 26,000. members in General M

city. But of thirteen members of the wilon’s exeentive board af’ oe:

|___._least-three Were spies; one served as_chairman of the: organizing

_ committee, and another represented the local at @ convention where -

‘plans for new organizing drives were formulated. Within two

years membership in the’ Flint local fell to 120. When UAW or-

ganizers came to Flint they found workers who were afraid. to

‘participate in ‘overt union activities. Clandestine meetings were ©. ,

held at night with the lights out; for the frightened men were

unwilling to risk being identified. ‘The LaFollette Committee con- a

' cluded that through espionage ‘private corporations dominate their © Lae

_ employees, deny th _eonstitutional rights, promote disorder’ . :

Die fetonbegat at rronpetiarat cen itr aa

ernment itself.” (emphasis added) ..

"See also: Federal Bearings Co., 4 NLRB 467, 471 (1987); High-

way Trailer Co., 3 NLRB 591, 607, (1937), enf'd per curiam, 95 F. 2d

1012 (CA 7, 1988); and Reuther, op, cit., 50 U. Va. L. Rev. 58, 59-63;

aad generally, U.S. Senate, Committee on Education and Labor, IN- ge

DUSTRIAL ESPIONAGE, Report No. 46, 75th Congress, 2d Sesion,

1987.

Sete, eee “+ : . 4 .

he ‘rights of the members of the UAW: We submit that we

z position to help this Court. more realistically to

/ rnintie the true dangers of. the government’s position. —

ae And. we fear that, unless those dangers are fuily appre. -

_/ Gisted, the U'AW and Americans generally may yet be -

-- - foreed to peagee some of the saddest —— ae Da

tion’s history. =

- For these Teasons, the Tobernational Union, UAW. fies a

this brief « as amicus qurtae 1 in support of f respondents.

er. £

ee

is os Ae *. °

pe ae QUESTIONS. 3a

> L Is the Fourth Amendtient violated by dockins: sur-

‘Sellen specifically | authorized by the President, acting —

through the Attorney, General, to gather intelligence in- ©

ee formation which«the Executive branch- deems: necessary. to ”

: x’ ie protect against attempts to overthrow the government by.

ae X * force « or other unlawful means, or against other clear and

»* present dangers to ‘the government’s stracture,or existence!

If. such national security surveillance is. unlawful,

- md nevertheless be appropriate: for a‘ federal district:

court’in a criminal prosecution to determine in camera

whether : the interceptions are arguably relevant to the :

nie perore requiring their eens. to defendant!

. - P eu . .

‘ ° . s 7

- a oe ‘Ye - -

. 3 . . - ‘ .

. ‘ ste : . ‘ < ES

hts .

e . * _— - .

E They would.avoid cecal eae Aiea safeguan

E by arguing that “national security” surveillances are Teally

for reasonableness, and that these ‘searches fit within the |

- foreign intelligence: exception to the Fourth Amendment.

Bat reliance “On. the balaneing test of the administrative 3

" search ared i is misplaced. Here we are dealing with Con-

. stitutiofal rights; not administrative regulation. Moreover,

‘the Fourth Amendment safégnards are particulary ‘im- af

LY portant in this case. The history of the Fourth Amend-_.

~ Ment clearly shows that it was’ designed to protect. a citi--

wen’s right of free ‘speech from government : suspicions . of

subversion and disloyalty.: To.argue ds Petitioner does.

here, that. because subversion may be involved this‘case is -

—— from Fourth Amendment protections, is: to turn

‘the purpose of the Fourth Amendment on its head.’ Thus,

this surveillance must. be presumed arbitrary and unrea-

- sonable. Because basic liberties are involved, the govern-

ment bears a heavy ‘burden to show the surveillances both

Bias jastified and: thoroughly safeguarded. . :

_ Nor may the vernment bootstrap itself inte the foreign

intelligence excl agtion. with unsubstantiated insinuations.

administrative searches, subject only to a balancing test ,

rt eS 4 oe he heen fe Sp

ee ae Sas ve : i 6. oS ee : eo

Ds sh iobeiaioaitnn that doinéetie: radicals. ‘are $0 2

| d” with’ foreign intelligence operations as: to

‘deserve: identical treatment. Again the governmiént secks

to judge its own case. They offer neither glear eyjdence’

"mor indeperident judgment of such involvement.” Further, ‘.

oe even if they could show such ‘‘interrelation” this case does.

~~ not fall within 'the foreign intelligence exception. ‘Hee the

« Executive seeks in: _peacetime to unii#terally decide ‘that

domestic organizations: of [nited States civilians are ex-

' empt from the protections St the Fourth Amendment. Nor: .

~~ does past practice. tinder the Olmstead line’ of cases estab.

:+ lish the constitutional permissibility of. these egrveillanees |

now that Katz has overruled Olmstead. =

No other meaningful safeguards have bees: sn

Petitioner. zAppreval by the Attorney General offers no ~

: protection because he is an interested party. The possible"

_ answerability of the Attorney General,’ through the Presi-

, dent, to the People is no protection because the People will ~

have no infermation, about these. surveillances ; and because

the’ Fourth Amendment was coriceived precisely as 2 safe :

guard against answerability, to the People on matters of

basic liberties. After-thé-fact judicial review for arbitrari-

none 10 Ro. prvvartign: beceane Do Sandard = weal ad Be .

government controls the information. -

: In the absence of meaningful tafeguards, ‘the daijger-cf.

_abuse is intolerable. If one category exists practically and ~

2 legally immune from scrutiny or control, no other area can

'.... ‘be safe. It will be easy to fit troublesome opponents within

nos ee

| Se

The technological sophistication of inieligrts ssvaaiineoglag

itself raises doubts about the’ ability of even the Attorney

i rs i ere

é : : Z e

43

shes

: . aS eee ;

°s AY

| aibict’ surveillance: SOY sate gives, little core at

for optimism. pops Precept Aa "gre

‘ FBI has wilfully disregarded. the ‘Tequirement Waster ee Se

Aftorney General _ approval. The King . experience also.

shows that the Attorney General has no trouble eaves-

racing any prominent American, whatever his political B

‘peecmats s own brief is ample evidence fee dees if a

- ‘abuse, absent Fourth Amen nt safeguards. The govern-

ment shows an inability-to y appreciate the difference

| betweeh what is the cise and what ought to Wé:the ease.

. To lack this ability is to Jack the | conéeptual apparatus fee ,

needed to recognize when ‘ an. existing policy is unconstitu-: =

‘tional, thus the: ability to spot abuses. Again, consider :

the government’s attempt to rely on past practice since

- Okmstead has been “overruled, this practice. only amounts .

zy toaconstruction of §605 of the Communieatjons Act. Thus,

. the goveriment is. trying. to create a constitutional excep- eae

tion from a’ statutory construction. - ‘Further expansion iz

_ should be simplicity itself. eT =o

§

The only ho > of preventing’ and eoatrolling Z to

adhere to For Arien safeguards.. ne singe con- .

trol may be difficult, the itution requirés that we try.

Adherence to’ safeguards. does not deny the authority. of .

_ the Attorney General to defend sqciety, it merely controls: .

; the methods he uses. The government-cannot argue that

the judiciary is incapable of prior review of surveillances.

” Itis presumptuous and contrary to the wholé thrust of the

Fourth Amendment to tell judicial offic they lack the

ability to handle complicated cases. Nor can \the govern-

ment argue that in camera proceedings are an adequate .

‘substitute for disclosure under’ Alderman.. 'The very con~’ ce ees

siderations which Mr. Justice White stressed as. requiring:

disclosure. are present here, as. the: government’s brief

— Alderman i is not an exercise of : et payers, ee

The Palmar Raid period weenihin. a. clear ‘example. of

= eres the-govertiment would‘doom us to repeat. Some

- years before the-raids of 1919-20 this Court gave the gov.

ernmettt an area within, which ‘‘administrative procedures”

weuld be totally exempt from. the ‘safeguards of. the Bill of."

Ae Rights; deportations of resident aliens. There. were stand-. 3

_ ards to prevent abuse, but those standards were ‘applied

- by the Executive. : There was after-the-fact judicial review

restricted espionage. Warrantless, dragnet searches, mass .

; : of the day. Finally,: ander pressure from-men like Felix.

Frankfurter, the President brought this subordinates (in- ~

General Intelligence gaan to heel. -

for apitrariness. The. national security was purportedly. o*

_being*protected against the ILW.W., a domestic dissident

3 organization... As the 1.W.W> ‘was: ‘thought to.be “‘inter-

ted” with foreign enemies, it became fair game for un-

arrests and tricommumicado interrogation became the order

cluding J. Edgar Hoover, head of-the Justice Department's 3

e- = %° X gue

" : "2 ee

r | “INTRODUCTION: a eg

. & abe

This brief will focus: ‘on the potential for ons idee

in the goveriment’s position. ‘Our purpose is'not to dis-

cuss every aspect of the questions presented in exhaustive

detail. Rather, it is to help this Court more’ fully to ap.

preciate the grave threat to. our basic se tage raised. by .

the, government's claims.

bs x x : ve * a se 2

me ARGUMENT...

‘> eee : eis . 2h

WHICH THE EXECUTIVE MAY, WITHOUT ANY MEAN.

INGFUL SAFEGUARDS, EAVESDROP ELECTRONICALLY

‘°. ON WHOMEVER THEY SEE FIT. _ | 7

Stripped. to its basics the government is claiming that

in the area vaguely characterized as ‘‘threats to national —

security” the Executive may, while exempt from any ‘mean-

ingful safeguards, tap 6r eleetronically bug whomever they

_ see fit. In effect, what is being claimed is’an area’ within

Which the government will be totally privileged, practically ~

and legally immune from apy effective scrutiny or control. :

A. Unrestricted Electronic Surveillance Poses a ‘Clear

Threat to Constitutional Rights, -_ oe Shy oo ike al

_. The serious threat 3 which indiscriminate eavesdropping, —

whether by tap or electronic bug, poses to basic constitu-

tional liberties has been frequently stressed. As Mr. Jus- *

tice: Douglas has put it | eg ds

. “Wire tapping, wherever used, has a black ree-.

‘ord. The invasion of privacy is ominous. It is drag-

net in character, recording everything that is said,

-. by the innocept ‘as well as by the guilty. It ransacks’

3 ‘Wm. 0. Douglas, AN: ALMANAC .OF ‘LIBERTY ‘: (Doubleday

‘ed., 1954), ‘at 355. See also: H. Schwartz, “The Legitimization of Elec-

are but puny. instruments of tyranny and oppression when compared

. With wire-tapping”, — ee ~ , 4

10

their private lives, overhears their confessions, and. :

probes their innermost secrets. It is specially severe

“in labor espionage, in loyalty investigations, . in

' probes to find out what people think.”

é o. ° Q. oes a . ae

~- InSBerger 0. New York, 388.U.S. 41, 55-56" (1967), this

Comments: ou: Fy ase |

> “By its very nature eavesdropping involves an

- intrusion on privacy: which is broad in scope. As

was said in Osborn v. United States, 385 U.S. 328

(1966), the ‘indiscriminate use of such devices in .

law enforcement raises grave constitutional ques-

tions.under the Fourth ... Amendment... . and

‘imposes a heavier responsibility on this court in

its supervision of the fairness of procedures...’

> a ae tact 3

It is, we subinit, safe to assume that in the four years since

_ Mr. Justice Clark wrote these words electronic eavsedrop-

_ ping has become even more sophisticated, even more ‘‘drag-

net in character,” even more of a threat to constitutional

rights. Thus, the law enforcement agencies who use eaves-

: dropping, and the courts who sppefvise its use bear an-<ven

heavier responsibility to show that such activities are both

well justified andl thoroughly safeguarded against abuse. -

B. The Government Claims an Exemption from any _

Meaningful Safeguards.

1. THE GOVERMENT SEEKS TO AVOID NORMAL FOURTH

There are two safeguardstiormally used to protect fourth

amendment rights: prior judicial’approval, and disclosure

under Alderman v. United States; 394 U.S. 165 (1969). The .

. government seeks to avoid these safeguards by the related

arguments: (1) that. “national security” surveillances are

‘> *

i. aor

-

: sinlty seabed searches, subject only to a balancing .

"test if they are neither arbitrary nor capricious;* and (2) -

that. surveillance of. ‘individuals who, like defendant Pla-

-mondon, are thought dangerous to the national security fits * -

within the foreign intelligence ee to the Fourth

Amendment® — rhea

. /

J

* Bat Reliance on che Balancing Test ofthe Adminis

coinr eaerh Ania be Wigan, |

This: Court need not be reminded ‘that the eovirniaciit

“of the United States is one.of limited powers. The Bil] of |

Rights was designed precisely to ensure that the federal

‘ government’s’. powers over- the people remained limited. |

The warrant requirement of the Fourth Amendment was .

designed to provide a judicial safeguard against the abro-

gation of power by the Executive branch.. — v. United

States, 116 US. 616 (1885). - Fix

The wisdom of. this. approach is clear. “If men were

' angels,” it was ‘said long ago in the Federalist, “no govern-

ment would be necessary. If angels were to govern men,

neither external nor.internal controls on government would

_ be necessary. In framing a government which is to be ad-

_ ministered by men over men, the great difficulty lies in

this: You must first enable the government ‘to control the

"governed : and in-the next place oblige it to control itself.

* A dependence on the people i is, no doubt, the primary con-

trol on the government; but. eaperience has taught mankind

. the pouonnity: of auailiary panes: =.

&

€y

SBrief of the United States, p. 6. + 8

®* Brief of the United States, p..7.

_ ‘Federalist, No. 51 (Madison). © _

The nsuxiliaiy. preeantion™ at i issue dines is no mere rile

of convenience. Here we are dealing with’ the Fourth .

Amendment. Convenience and i inconvenience, efficiency and: .

.* inefficiency are not to the e point: As Mr. Justice. Douglas |

. putsit:* 3

“Wire taiji, it is wk is ‘exsnlial or impor.

- tant in detection'of crime. The use of torture is also

'' effective in. getting confessions from suspects. But

a civilized society does not sanction it. Wire tap .

ping may catch criminals who might otherwise es-

cape. But @ degreé of inefficiency is a price we nec-:

_ essarily pay for a civilized, decen¥ society. The free

_- state offers what a police state denies—the privacy —

of the home, the: dignity arid peace of mind of the

individual. That . precious right to be let alone is .

_ violated once the police -enter our conversations.”

( —— supplied).

These seritiments were reaffirmed. in. Coolidge v. New

"Hampshire, 403 U.S. 443 {197 1). In language particularly —

relevant to the instant case, this Court said, 403 U. S. 443, -

459: oes

Tn times of unrest, errs caused by crime or

racial conflict or fear of internal subversion, this

basic law and the values that it represents may ap-

pear unrealistic or ‘extravagant’ to some. But the

values were those.of the authors of our paeenlhy

- tal constitutional concepts. In. times not altogether

“unlike our own they won—by legal aiid constitutional

means in England, and by, revolution of ‘this con-~

tinent—a right of personal security against arbi-

trary imtrusions by Official power.. If times have

8 Wm.°O. Douglas, op. cit., at 354. “We in this country, however,

early made the choice--that the dignity and privacy. of the individual .

were worth more to society than an all powerful police.” Dongen, p

dissenting in United States v. Carignan, 342 U.S. 36, 46 (1951).

, 13 a :

changed, reducing every man’s ‘scope to do as he

pleases. in an urban and industrial world, the

changes have made the values served by the Fourth —

Amendment more, not less important.” - (emphasis a

- added). : :

_ If a government of limited powers and our Fourth Amend-

ment safeguards mean anything, they mean that the govern... *

‘ment bears the burden of thoroughly justifying any intru- ~

sion on the citizen’s privacy, and of establishing the exist-

ence of sound safeguards against abuse. T'o begin their dis-

‘cussion, as the government does,® from the assumption that... -

our basic freedomig are to be weighed, as so much ham- °

burger, against the’ efficiencies of hunting subversives, is.

to fly in the teeth of both history and the pronouncements

of this Court. The history of:the Fourth Amendment: . ;

shows that it was designed to’ protect individual Fights

an

led

_ against arbitrary intrasions-of Official power, particularly

- when those intrusions are made in the name of preventing .

subversion and disloyalty. The issue is not whether they

may spy upon suspect citizens until someone shows the spy-

ing to be, on balance, unreasonable. Rather, the point is that

spyjng wee citizen, suspect or no is wee on =

The constitutional presdmption against searches and.seiz-

ures is particularly strong when First Amendment rights

* are endangered, as they are here, Stanford.v. Texas, 379

US.:476 (1965), per Stewart, J .| Rlamondon and his asso-. *

_ ¢iates are, to say the least, politically opposed to the. cur-

rent Administration.” Of course, a defendant’s political

¢ - *Brief of the United States, pp. 5-6, aa

*°The government admits as much. Atterney General Mitchell’s

ifidavit states that the surveillance in “question here was “deemed

necessary-to protect the nation from attempts of domestic organiza- .

tions to attack and subvert the existing structure of Governnment.”

(Brief of the United States, p. 3). | Saas

(14

aa iliadis'e are biineiieiins a ina criminal trial. But the'i issue here 4

» is the legality of the tactics used against a criminal defend.

ant. The fact that defendant Plamondon i is. also i a political

opponent. gf the current Administration should bring to

-mind Judge Learned Hand’s warning, United States v.*

Kirschenblatt, 16 F. 2d 202, 203 (CA 2, 1926) :

“Nor should we forget that what seems. fair |

enough against a squalid huckster of bad liquor may

. take on a very different face, if used by a govern. .

ment determined to suppress petitienl. opposites :

under the guise ‘of sedition.”

Whether or not the evimninal’ ‘ease against defendant Pla-

miondon was brought i in order to suppress political Opposi-

tion, the mere danger ean only reinforce the constitutional

presumption against surveillance. For, as Mr. J ystice 3

Brennan’s exhaustive historiéal aisoussion in Marcus %. ©

Search Warrant, 367 US. 717, 724-29 (1961) shows, the

limits which the Fourth: Amendment places on the discre--

* tion of officers’ is to the defense of freedom of . expression

and. association, 367 U.S. at 729:

. “The Bill of Rights was feshinand 3 ae the

| background of knowledge that unrestricted power of

search and seizure could also be an instrument for

«| stifling liberty of° expression. For -the serious haz

A ard of suppression’ inhered in the discretion con-

fided’ in. the officers authorized- to exercisé | the

_ power.” (emphasis supplied).

If dissenters know that officers have the unrestricted dis.

cretion to eavesdrop whenever they care to, then fear alone

. will stiffle free expression. Widespread surveillance never -

really. need be inoctaliea’ A few shieniiba’ will get the |

message across a very effectively. chilling dissent.* we

Against this background,’ ‘it becimes clear that the eaves- Be

dropping in question here cannot even begin to be classi-

fied as an administrative search. ‘This Court has restricted :

warrantless administrative searches to situations where the

factual setting makes it that. adequate safeguards

present. dee ge meets intrusions upon the in-

* terests: protected by the Fourth Amendment. - Generally; -

sich searches are a necessary part of some regulatory

/ scheme having little or — to do with the prevention em

i criminal activities:

‘Thus, in (Wyman v. James, a L.ed.2d 408 (1971), Mr

Justice Blackmun was careful to point: out that (a) Ms.

- James consented to the search, (b) that she was not com-

pelled to consent to the search, (c) ‘that. home visits were. *

necessary to the”proper administration of the A.F:D.C.

program, and (d) that the “home visit is not a criminal

_ Investigation, does not. equate with a criminal investiga-

_ tion; and . . . is not in aid of any eriminal proceeding” .

% Led 2d = 4/7. The search and seizure in question here. -

is not remotely similar. As defendant Plamondon was un-—

aware of the surveillance, he had no way to refuse consent.

Indeed, the whole notion: of consent is meaningless in the

surveillance, context. While Ms. James could protect her

| privacy, Plamondon could not. ‘While ‘this: surveillan

11 For this reason, the: government’s assurance ‘that fanpage few”

national security surveillances are actually undertaken (Brief. of the

United States, p.. 27, n.- 10) misses the point, In the First Amendment

area, even a few are too# many. Moreover, it should .be noted that the

government only gives us information on teléphone surveillances. It: is

altogether possible that the reason the number of telephone ‘surveil-

lances is. declining is ‘that such surveillances have becom? technologi-. 7

sally outmoded in the last ten years. For aught we know the total

- Rumber ‘of electronic surveillances . have —— Berge gre

v

16 |

may not have Liste cigianty. dicate at ‘Etnies! it’.

on certainly “equates” with a criminal investigation. On the-

<< government’s own showing, this surveillance was needed —

— prevent, bombings and other “covert”, terrorist tactics ,

to destroy and subvert the government.’ Bombing, the use —

of terrorist tactics, conspiracy to do either,. being an un-*

-_Tregistered-agent of a foreign power—these are all‘criminal ,

under the laws: ‘of the United States or the several- states.

Tt must. then follow that this ‘surveillance was part of a.

criminal investigation. ‘However, if this surveillance was"

nota. necessary part of an effort to investigate and prevent.

_ ‘these crimes, the government ought to-favor this Court with

/ an explanation. of why such -warrantjess eavesdropping i is

_/ 80 essential to: protecting our national security. Either

~ these surveillances are part of criminal investigations or

they are not, If they are, then perhaps. they are important -

to national Security ; but they are —— no administra-

tive searches.

In either event. the solaris seeks to use this eats

lar surveillance “‘in aid of”.a criminal proceeding. The .

a ‘protestation that .“‘the- Attorney General is gathering in-

: telligence information for the- President,” rather than

“obtaining evidence for use. in a criminal. prosecution,”

has a doubly hollow ring. | First, as we have sliown, the

information in which the President i is interested is informa-

tion of criminal activities for which there’ will’ presumably

be —— criminal ‘prosecution."* Second, ‘even if this

19 Brief of the United States, pp. 1919. 2

"18 Brief of the United States, p.°19. a ..

14 This vitiates the government’s attempt to” distinguish Coolidge

v. New Hampshire,.-on the ground that the warrant there was issued

to obtain information for a subsequent criminal prosecution, Brief of ©

the United States, p. 19, n. 8: Here, the purpose of the surveillance

was also to obtain information for subsequent criminal prosecution. Of

course, .it is logically possible that the government ‘intended to stop

ti feared conspiracies, bombings and “terrorist ,tacties” by some other -

means than criminal prosecution and trial by jury. By what other

_ Means, we leave to the Court's imagination. .

information were ‘ dathersl hes some “neutral” = a

tive reason, the government now seeks to use th

tion in a criminal ‘proceeding.

In Camara v. Mumicipal Court, 387 US. 523 (1957); the

administrative’ search case’ on which the government so

strongly relies,” this” Court, per Mr- Justiee White, was -

equally careful to point out that the building inspection ‘i in

question savolved, 387 U.S. at 534:

1

_e

eee . significant intrusions upon. the interests Bee

Sete, by the Fourth Amendment . [and]

‘that such searches when authorized and conducted ce

without a warrant procedure lack the traditional -

: tees to the individual.”

safeguards which the. cherie Acadian guaran- |

Consequently, this Court held that prior judicial soe

of the search was required. It is, moreover, interesting

_ to note that Mr. Camara came to this Court seeking. me

prevent state criminal action against him. a

In short, neither Camara nor anything ‘else’i in our histozy, : ae

-. constitution, and case law justifies the governnient’s reli-

| ance on the balancing test in this case. 5 mente

rc

‘\

<

e. ~ ane : * . \

45 Brief sof’ ‘the United States, pp. 18, 23-4, . i

: . Bia

. - 4 =

. © .

’ . . ” .

. \ : .

ay . . . Ps

» - ad »

. \ >, ~ ve ve? r]

- -4 - ° saa

s, . ‘

\ e ; :

,

,

16 Similarly, in Colonnade Catering Corp. v. United States, 397 .

' US. 72 (1970), this ‘Court held a warrantless, forcible search for

* liquor illegal. In dissent, Burger, C.J., and Stewart, J., emphasized

tat a large liquor store could easily afford-the $500--fine for refusal

to allow Suepection, and thereby ‘Safeguard the _brivacy of its store-

\ 7 . . : a- = ? Oo

ae i 4 oid . : 5 er J

As we have shown a halawcinay test may not be applied to

the warrant ‘requirement in this case, and thus no balane-

ing may be conceived of, which can.exempt the government 7.

from the warrant requirement here. The government's -

argument to the contrary perverts both thé history of the

Fourth Amendment and the case law. But even assuming,

“arguendo, that a balancing test is appropriate, to strike the

-balance.in the government’s favor here would render the <4

* Fourth Amendment a nullity. ° : ttt ory

What vital.needs’ would the government have sthis Coutt

7 put on: their side of the balance? They suggest ‘the follow: ©

. ing needs: to preyent bombings of government and other

facilities ;" to prevent other ‘terrorist activities” ;*.to pré-

vent disclosure of information which, by their ture, are.

highly confidential and‘ must -remain secret; a prevent

_ danger to the lives of informants and agents ;*°-to maintain

- uniform standards ;* to protect tfie governiment’s ability

.. to ob vital information relating to. national security, °.

and reve! eames dangers to national security.”

H Brief of the, United States, p: 18, n. 7.

. '* Brief of the United States, p. 18.

supicegias say sox a es te! and p. 34; whowe very naar.

requires {fjrat they not be made

m Briet of the United States” p. 24.

| 3 Brief’ of the United States; p. 21.

*1 Brief of the United States, p. 24.

ae

19

“But a : isle look_at this array. reveals that, with -_

exception, each of these considerations is based on informa-

tion exclusively within the government’s. possession,-or con-

‘dugory, or both. Only the. government is in a position to

evaluate the. threat of unspecified terr6rist activities. Only -

_ the government can evaluate whatever it is in some informa-'

. tion’ s nature that: makes its highly confidential,’ ** or why tt

‘must remain secret. Only the government knows who its

_ informants and agents are, let alone what dangers may

_ threaten n them. Ofcourse, we may speculate .on the effect:

a lack of uniformity may. * have on. national security ‘sur. :

yeillance; but (if the — prevails) no one but the —

’ Executive branch will.evér know anything about these sur-

yeillances, much less whether their effectiveness.is improved

by the uniform standard imposed by successive Attorneys -

= General. On all these points, the government i is. ‘attempting 3

to judge its own ‘éase..

he bald assertion that. there ig a seu to- protect the ‘.

ability to obtain information relating/to national-security, _

and to prevent dangers to national, security, adds nothing.

Everyone admits these needs. But ‘fhe statement that’ such

‘needs exist, without more, tells us nothing about why grant- ~~

‘ing the government’s claims i in cases like this one will ful- ©

- fill: such needs. These aré mere conelusory assertions.

‘On one point we are given independent information-the

need to prevent bombings y However, the government never

" shows why it is: that, , a " special. warrant under the -—

_ Omnibus Crime Control and Safe Streets Act of 1968," 18

US.. §2510 et seq., would make, it any more » difficult toy

.- : a

-_23One is are of the ancient dacsthasiitials of way objects ‘tell Was

Ht was in. their nature, wo were solemnly tid, So;coek the earth. ”

&. iy

-

“a?

we 7

*

mae, 20°

> © lf 8 NM, _° .

prevent bombings.** Even with the information supplied

‘by awarrantless surveillance, the C.I.A. office in Ann Arbor

“was still bombed... ‘|

vow The Fourth Amendment requires not only evidence from,

which reasonable ‘inferences can be drawn, but also that

those inferences be drawn. by a neutral and detached magis. .

trate. As Mr: Justice Stewart put it in Coolidge v. New -

_ Hampshire, 20.L.ed.2d, 564, 573 (1971) :* a 7

°

-

** The absence of ‘such a showing moves one to wonder if the At-

torney General may not be over-estimating the danger which domestic

dissidents actually . pose to national security.. One is reminded of

Charles ‘Dickens’ ‘descriptior’ of the Coketowners in HARD -TIMES

(B54"ed): eo

“Surely there never was such- fragile chinaware -as that of °

which the millers of Coketown were made. Handle them ever so

.lightly and thel fell to pieces with such ease that you might sus- ‘ ~

pect them ofthaving been flawed before. They -were ruined when

they were required to send laboring children to school; they . were®

4 ruined when inspectors were appointed to look into their works;

, they were ruined when such inspectors considered. it< doubtful’

- Whether they were quite. justified in chopping people up with their

_» machinery; they wére uttérly undone when it was hinted: that per ©

. > haps they need not always make quite so much smoke. Whenever

ts ‘ a Coketowner felt he was ill-used—that is to say, whenever he was

Oe not left entirely alone, and it was proposed to hold him account-

able for. the consequences of ay of. his acts—he was sure to come

out with the awful menace that he would ‘sooner pitch his prop-

erty into the Atlantic.’’ This had terrified the Home Secretary

within an inch of his life on several occasions. However, the

Coketowners were so patriotic after ali, that they ‘never had

pitched their property. into the Atlantic yet, but on the contrary,

had been kind enough to take mightly good care of it. So there it

was in the haze yonder, and it increased and, multiplied.”

. | ™* Quoting Mr. Justice Jackson in Johnson v. U.S., 333 U.S. 10,

13-14 (1948). “The right of privacy is deemed too precious to entrust.

to the discretion of those whose job is the detection of crime and the

. aarrest of: criminals, Power is a heady thing;. and. history. shows that

«>. the police acting on their own cannot be trusted.” McDonald v. United

States, 335 U.S. 451, 455-6 (1948). 2

2

e° _ i | 21 .

“The point of the Fourth Amentient, which of.”

denies law enforcement the support of the usual -

inferences which reasonable men draw from evi-

dence. Its ptotection consists in requiring that those

inferences be drawn by a neutral and ‘detached

magistrate instead of being judged by the officer

. engaged in the often competitive enterprise of fer-

reting out crime. Any assumption that evidence

sufficient to support a magistrate’s disinterested

_ determination to issue a search warrant will justify

the officers in- making a search Without a warrant .

would reduce the-Amendment tg a nullity and leave _

_ the people’s homes secure only in the discretion of ©

police officers. ee ° . .

evs, the govecniiit neither offers independent informa-._

tion from which the need to perform. these surveillances

call reasonably be inferred; nor would they allow an in--

dependent, magistrate make the ‘required inferénces. N or,

- ~ as we show below at pages 43-44, is there any reason to be-

_ lieve the judiciary incapable of review should the govern-.

ment see fit to present the basic information. By presenting —

conclusions rather than facts, the government seeks to avoid ©

_ both the necessity of prior judicial review, and: the possi-

bility of any realistic balancing of interests by this Court,

_ should such a balancing be found permissible. The Fourth

Amendment ought -not be rendered a nullity. - /

ten is not grasped by zealous officers, is not’that it: °, .

c Nor May the Government Boosap Il into the

_ Foreign Intelligence Exception ' with _Unsubstan-

tiated insinuations.

The government argues that national security. sented

lance of domestic groups is ‘‘so interrelated” with sur-

‘veillance of foreign intelligence operations that the former

must” come within the exception created for the latter.* _

a There are two responses to this line of argument.

"-(1) The government is attempting to bootstrap ‘itself

into the foreign intelligence exception. Although the sealed

-exhibits now before the Court may contain startling revela-

tions, nothing in the government’s. argument suggests any .

;. ‘evidence from which it may reasonably be inferred that i

.. either Plamondon, or the organization whose phone was

| tapped, were in any way entwined with the intelligence Op-

> erations of unfriendly foreign powers. Certainly neither

the fact that 521 calls went out of the country, nor that 431

_ ¢alls dealt -with ‘‘foreign” subject.matter constitutes such.

* evidence” It: should be remembered thatgir. Plamondon -

and those of his persuasion have opposed the Administra. _

tion’s foreign policies. In parti¢ular, it is common knowl-__-

edge that he and other young radicals have opposed the’

military draft. Many draft resisters and other dissatisfied

Americans now reside in Canada, which is a foreign coun- .

try.™ Thus, it is entirely possible* that a great number of

90 Brief of ne tikes States, pp. 29-34. ° °

\s Brief of the United States, pp. 0-21, n. 13. .

Oo

78 It should be noted that the large “Canadian city of Windsor,

nt., is less than fifty miles from Ann Arbor; and that the population |

centers of Ontario ‘are within range of a cheap phéne call. from - of”

. the major cities in the northern United States.

20Here we must speculate as the exhibits are ‘sealed:

~ those 521 calls out’ of the: cout try involved nothing more

sinister than calls to expatriot friends or discussions with

foreign groups about the mail (or,even the repatriation) of

United States prisoners of war. Likewise, whenever two

"people discuss foreign affairs, the War in Viet Nam, or the

. international monetary situation, they may be said to have

+ dealt: with a ‘‘foreign subject matter.” Thus, it is entirely

possible” that a great number of. those"431 calls consisted

" of nothing more sinister than constitutionally protected-dis-

cussion of cufrent-events. oy : fo. ——

‘Moreover, even if the government can reveal cooperation

between domestic radical greups and individuals ahroad,

they have not necessarily established any dangerous inter- ©

relation with foreign spies. To suggest that such.a Tela-_—

tion is necesgrily established is to engage in guilt by as-

socation. Mr. Justice Douglas has written :** a

e

«

2.

*° Here, again, we must speculate as the exhibits are sealed,

‘: Wm..0. Douglas, op. cit., at 372. Judge Keith, below, put-also the °

. Matter no less eloquently: . et

“An: idea which seems to permeate much of the Government’s

argument is-that a dissident domestic organization is akin to an

‘unfriendly foreign power and must be dealt with in the same

fashion. There ‘is great ‘danger in an’ argument of this nature for

it strikes at the very constitutionnal privileges annd’ immunities

_ that are inherent in “United States citizenship. It is to be remem- :

bered that in our democracy ‘all men are to receive equal justice.

regardless. of: their political beliefs or persuasions. .

“The executive branch of our government cannot be - given

the power or the opportunity to investigate and prosecute crim-

inal violations under two different standards simply because cer-

‘tain accused persons espouse views which are inconsistent with

our present form of government. - :

“In this turbulent time of unrest; it is often difficult for the .

established and contented members of our society to tolerate, much

. less try to understand, the contemporary challenges to our. exist-

(continued on next page)

. oy :

“Guilt by association is a dangerous doctrine. It

_ condemns one man for the unlawful conduct - of

- another. It draws ugly insinuations from ‘an @SSO- -

« ciation that map be wholly innocent. In June 1945,

the Supreme'Cburt stated the American philosophy

-" eoncerning this concept: * ~ _ ~ 3

'- ©... Individuals, like nations, may cooperate -

in a common ¢ause over a period of months or -

years though their ultimate aims do not éoincide.

Alliances for limited objectives are well known.

Certainly those who joined forces with Russia —

‘to defeat the Nazis may not be said to have made

an alliance to spread the cause of communism.

An individual -who makes contributions to. feed

hungry men does not become ‘affiliated’ with the .

communist cause because those men are Com-

munists. A different result is not necessarily in-

dicated if aid is given to or received from a pro-

_ Seribed organization in order to win a legitimate -

objective in a domestic controversy. Whether in-

termittent or repeated, the act or acts tending to.

prove ‘affiliation’ must be of that quality which in-

didates an adherence to or & furtherance of the

.,- purposes or objectives of the proscribed organi-

‘zation as distinguished-from mere cooperation

with it in lawful activities.’ ” ‘(quoting the

Bridget cane. ames ae

' Tis indeed dangerous to engage in guilt by association—

to darkly insinuate, without good evidence or indépendent -

(continued from preceding page) bo

. ing form of government. If democracy as we know it, and as our

a

use of. force or violence.” .

judgment, that domestic radicals and foreign spies keep

such close company that they are indistinguishable ; then to

assume they are indistinguishable ; and thence concludé that

they deserve identical treatment.

(2). Even assviming arguendo, that dowssig radicals aoe

_ are “interrelated” ‘with foreign agents, this case ase dees not :

fall wathin the foreign.intelligence exception. The so-called

- foreign ‘intelligence exception to the Fourth Amendment

. is, so the government would have it,? based on the inherent

powers of the President over foreign affairs or as Com-

mander-in- Chief.

But-the- government’ s reliance on Chicago ond Souther

Airlines, Inc, v. Waterman Steamship Corp., 333 U.S. 103

(1948) and the other foreign affairs Cases”is ‘misplaced. -

In the very passage of Waterman, quoted in the govern-

metit’s brief,** the court makes it clear that they have. in

mind .the “OFelEn, ‘as distinct - ‘from the domestic area, 33

US., at 111: ’ . i 7

-“*[T}he very oalare of executive decisions as to . .

foreign policy i is political, not eae " (emphasis

supplied).

_. More importantly, i in Waterman the Court’ was concerned

only with.the nature of delegated Presidential power over

air carriers, which had no First or Fourth Amendment im-.

plications. ‘By contrast, this case poses very serious threats |

to both Fourth and First Amendment freedoms. As we

“-have seen, the standards and approach to such common-

place administrative questions as airline rates, are entirely

out of place where serious Fourth and First Amendment '

| ‘88 Brief of the United ‘States, pp. 15 et ae.

33 * Brief 7 the - United States, p. 82. -

ee ee eR cea er a 2

issues are raised.” , United. States .v. Clay, 430 F.2d 165

(CA 5, 1970), relies on Waterman and is ered dis.

~ tinguishable, ~~~. ~~ aga a

_ Nor may the government proyeity Tely on pewers in-

_ herent in the Commander-in-Chief.. Y¥ oungstown Sheet ¢

| Tube Co. v. Sawyer, 343 US. B19 (1952). settles this point.

Although the President was claiming a threat to national

security in a war;time situation, this Court denied the

. Ing. to the contrary. Totten. involved a Court of -Claims

Commander-in-Chief the authority to seize the steel mills, ©

As Mr. Justice Jackson’s concurrence makes clear, there is

‘a world of difference between the President’s plenary

_ power over the armed forces in theaters of war, and his

_.. constitutionally limited power ‘in internal affairs, 343 US.

643-4, 646: -

. “There are indications that the Constitution did

not contemplate that the title Commander in Chief .

+ of the Army and Navy will constitute him also ~

Commander in Chief of the country, its industries _

and inhabitants ... . military powers.of the Com- .

mander in. Chief v were not to supersede representa-

tive government of internal ‘affairs ... No penance —

would ever expiate the sin against free government —

of holding that a President can escaipe control of

. executive powers by law oe oe! his mil-

itary role.”

Totten v. United States, 92 US. 105 (187 9), ceimmeti noth-

; case brought by one of President Lincoln’s spies to recover

expenses incurred while abroad i in the Confederacy... Un-

papeiaingiy, this Court held that. the President had: the

| MUS. vw. Curtis-Wright Export Corp., 299 U.S. 304 (1936) in-

volved only Presidential power to ae: munitions exports, and is

— on similar grounds.

27

aneity to avnieds spies into the die vitany: of the-enemy.

By contrast, the instant case involves sending spies abroad .

__in our own tertitory to Spy,on our own citizens, without any -

independent judicial determination that those citizens are

about to engage in “terrorist tactics,” much less civil war.

While the foreign intelligence exception perhaps allows .

the President to send spies abroad, or to spy on foreign

nationals in the Unitel States, it-'does not allow him unli-

_ laterally to decide in peacetime that domestic organizations

of United States cwilians are exempt from the: “protection.

of = Fourth Amentiment.

d. Noid the Years of National Stcurity, Surveillaace

precy Kast Citete ony Eegptions <0 the Beutth

_ Amendment. ;

The government implies that the he fact of thirty years of

tichecked national ¢ security surveillance established their

right to continue such Sich b samacatall There are two: re- |

sponses :. : .

(1) It is fallacious to infer an ougie” from an “is.”

’ Since at least 1739, when David Hume brought the matter -

to our attention, the western world has known, that one may

not logically infer that something ought to be.the case from ©

the mere fact that something is (or has been) the case.

"Brief of the United States, p. 18.

%¢David Hume, A ‘TREATISE. OF HUMAN. NATURE (Claren- ,

ba edition, 1888), Book III, Part 3 Section 1, at" pages 469-70:

“TI cannot forbear adding to these reasonings an dhiietahhen. -

which may, perhaps, be found of some importance. In every. sys-

‘tem of morality, which I have hitherto met with, I have always —

remark’d, that the author Byeorry for some time in the ordinary

(continued on next page)

.

28

For if. something is (or has been) the case, is it always

logically posible that it ought not to be the case any more,.

The government neglects this elemental logical point when

they seek to imply that, jast because the Attorney General _

has been. conducting national security surveillances for

thirty years, he: ought to be allowed to continue to do so.

"It is logically possible that he ought not be allowed to con-

tinue to do so,’ ' | ara ey:

(2). Surveilldnce practices before Katz v. United: States, |

389 U.S. 347 (1967) are no evidence of constitutional per-

missibility today. Before Katz came down in 1967 the line

Of cases beginning with Olmstead v.. United States, 277

_ US. 438 (1928), contained the basic law on the constitn- =

tional permissibility’ of electronic surveillance: However, e

as Mr. Justice Hérlan recognized in his concurrence, 389

_ US. at 362 n., this line of cases was finally overruled by ,

. Kate. be eg Peak an aeer vt cass ote.

_ Although the government’s tradition of national security

_ Surveillances and their stock memoranda is impressive, they _

are not.the point. Practices and administrative interpre

tattons. under. Olmstead et seq., are absolutely worthless

~ 99 ©

Ee now » that Olmstead has been ésveviilddi Since Kate over-

ruled Olmstead, the only practices. and administrative in-

terpretations that are relevant to this case are those that

ee hen alien yinne Ae ney Se but, the

gm offers none.

Zs

2. NO OTHER MEANINGFUL SAFEGUARDS ‘HAVE ‘BEEN

SUGGESTH BY PETITIONER.

apy me

The government. suggests that we will be protected

against abuse because the Attorney General will apply the —

same standard in authorizing national security. surveillance -

as Congress provided i in a the Omnibus Onis Control a

of 1968." )

As we have seen, it is “elemental that, if the Fourth

Amendment means anything, it means that a law enforce- .

“ment official may not judge his own case. Coolidge v, New |

Hampshire, 20 ‘T.ed.2d A, 573, (1971); Johnson v. United

States, 333 U.S. 10 (1948). In that the Attorney i is the law

enforcement. officer primarily. responsible’ for. ‘seeing that

bombings and other “terrorist activities” do not. threaten

the national security,” it follows that he may not sit in judg-

ment the legality: of ee aimed, at uncovering

just those threats. Pigs |

Whether he promises to impose a strict or loose stan-

dard.is not to the point. He.is an interésted party. He is

paid to be suspicious in these matters. Not’only is he a -

saad enforcement officer. He is the chief law enforcement

‘Briel of the United States, p. 20. |

“Brief of the United States; pp. 19-20.

,

Z ) . ° . . £ :

: .

a . ; : 7

——— ee sesso ME er Nn

i as - e

wor . ig

officer of the. Federal Govérnment, and as such the. man

directly responsihfe for ferreting out subversives. . Thus,

as such he cannot sit in judgment, whatever the standard. —

An independent magistrate must decide the issue, lest’ the

independence of the judiciary lose. its meaning. = —

® ! / , "ee foe SIG am LET bi

b. Fact that Attorney General May -be Answerable,. ©

a President, to the People is no Protection.

(1) /The People will have no way of knowing about na-

tional security surveillances. The government would have

both the existence and content of these surveillances kept-

absolutely secret. Jf there is no public disclosure, pub- —

- lie opinion cannot be a check on abuse of these surveil- :

« (2) The dangér that the President may be answerable to

_ the People is the very reason for the Fourth Amendment

and approved by an independent judiciary. The Bill of

__Rights-was designed to protect: individual rights against .

tyranny of the majority. The same is true of the indepen-

dent judiciary, In this respect they are anti-majoritarian. :

_ Thus, the very answerability of the President and Attorney —

_ General means that they might sacrifice individual rights

in the face of strong majority opinion. Therefore, such of-

_ficers are inappropriate. as ultimate guardians of basic

ea Ee et ae ee 3

e ay : ‘ 4 . i . com

a _After-the Fact Judicial Review Sie Abierto —

%

The povennailiit assures us that ‘Gf the Attorney 7 Ong

_ ral should ever abuse his: -authority i in authorizing a sur-

veillance, i.e., if the ‘subject of surveillance bore no reason-

able relation to national asics the courts fool. correct

the sifuation.”” -

As we have already chown, idspendeat judicial review ©

_ niust précede the surveillance to be: constitutionally ade-

quate under ‘the Fourth Améidment. ,. But even assuming.

_ arguendo that this surveillance is exempt from the warrant ~*~

requirement, judicial review for arbitrariness would be in-

adequate. Invasion of privacy is something that cannot be’

undone. The very reason for the warrant requirement is

” that privacy cannot be ‘adequately protected by post facto —

‘review. But even if post facto review. were somehow ade- ©

quate generally, review merély for-arbitrariness i is worth-

less. The standard i is so weak as to render such a review ie

“a mere palliative; a munificent bequest in a pauper’s will.

’ ‘But, as a practical matter, it would be‘impossible for a pri- ;

_ vate citizen to meet even such a weak standard. ° To show

arbitrary conduct one would have to have shown’that the

surveillance bore no reasonable relation. to national secu- se

rity. However, even if ‘‘national security” were not et

an impossibility vague phrase, one could néver meet his ~* -

-bugden as a practical matter. The Attorney- neral has ;

i monopoly on the information needed to show a lack of

“relation to national security: This information. is -secret,

and ‘protected by the. Executive privilege. In practical fact,

this control would be itinaby. To be effective res re-

3 : %

% Brief oft the iDulked Statan, >. 05T emghante supplied.

- e

oe ae ais . my Soe

ere. 7 ¢ ‘ dé Y 4

ea tre 3

. 7 ‘ ‘ a . . ‘

‘ “i . . . Z :

! ‘ ‘ .

i . t 5 :

> 5 . . oy $f ; i

P , > . .

a ae , ‘ — — dane — : —_a —

aii Ps “eas

«

- 9.

- view must occur before the surveillance when the govern- _

ment has an incentive to produce their inform&tion, and

before an independent magistrate who can deny the pei:

| tom if adequate information is not prominent.

<< : . - .

“IN THE ABSENCE OF MEANINGFUL’ SAFEGUARDS, ‘THE |

- DANGER” OF ABUSE IS CONSTITUTIONALLY INTOLER-

ABLE.

If the government is.granted what ee claim, an area:

'. within which they ‘may eavesdrop while practically ‘and .

_ Tegally immune from any effective scrutiny or control,

™~ then there will be absolutely no way. to check abuse. For if

such area exists, then no other.area can be safe. To

| justify abusive conduct, one need, only ‘use the time-hon-

ored n law maneuver of redescribing a troublesome

case coro it fits within the inherently yague category

“national seciinity, ” thereby expanding both ‘your power

and the category ab-qne stroke. .

This enterprise will. icularly easy in the area of

¥ national security for, as petitioer, repeatedly stresses," the

‘facts in this area are always detailed, and complex, the

_ inferences always, subtle. The more coinplex and detailed -

the facts, the subtler the kaforetions, the easier the abusive :

redeseription. 7 4

~ . 7 . wv

ait ‘ ,

“ # Brief of the United States, pp. 7, 25. aed

4...

A. Tine ‘Teoheclapienl Sophisticstion of Madcs itec:

tronic Eavesdropping Itself Raises.Grave Doubts -

ag _ About the Ability of Even the Attorney General

to Detect or Control Abuse of Surveillance. Yea

‘The Court need net be reminded of the incredibly high

_ levels of sophistication which the technology of a

surveillance has recently attained. .

But such powerful technology can itself pose a threat

to democratic freedoms. As Max Weber has observed :**

“The question is always who controls the exist-

‘ing machinery and such control is possible only in .

a very limited degree to persons who. are not tech-

nical specialists. 7.

When it comes to. electnibinio surveillanos of radicals oni”:

other threats to the national interest, the experts all work

‘at the Federal Bureau. of Investigation: But the approvals.

‘and the protections against abuse, we are told, will come

. from a man trained only as.a lawyer,-the Attorney Gene-

tal. If Weber’s observation has’ any merit, it is reasonable

to expect the. ‘Attorney General will have difficulty detect-

“ing, much less controlling, any abuse that may occur be-

» cause of overreaching by the technical experts.” The true

‘merit of Weber’s point is — mantaeint: y the recent

| history which follows:

ee . “Max Weber, THE: THEORY - OF SOCIAL AND ECONOMIC -

; ORGANIZATION, A - git gece - = —— eds., ». (Oxford ed.,

1947) at 337. :

“

(@2 Indeed, ' one journalist suggests this is ani true. V. Navasky,

. KENNEDY JUSTICE (1971) at‘p. 32 writing about Robert Kennedy's

‘tenure af Attortey General:

- Se the war against crime “the technical evécialists were the

technical surveillance specialists. Nobody not in the. business had

- (continued: on next page)

: . . , / ¥

> . ‘ . .

. » F

» . .

‘ .

”

"re . . . .

* ny * > ~~ Sac anavene eat ty

om — a ’ : re (On ea Peet E ME SEAN r >a

Sain al 1 cacao teats Se SR AN ee rat -~ ay . a) (Ng liea’

— + oa

B. Recent History Indicates that the Danger of Abuse

is Substantial. |

1, THE F.BL HAS WILLFULLY DISREGARDED THE RE-

_ QUIREMEWIT OF PRIOR ATTORNEY GENERAL AP.

PROVAL.

Consider, for example, ‘the. case of Martin Luther King,

° J r. President Johnson issued a directive on June 30, 1965,

expressly prohibiting ‘all wiretapping without the’ specific

approval of the Attorney General.* This was un unmistak-

able clarification of what was considered standard policy.“

We must presume that thé F.B.J. and all its agents were,

aware of, President Johnson’s directive. Ramsey Clark has -

_ stated publicly. that he never authorized a tap on Martin

.

Luther King’ s phone from October 3, 1966, when he be-

‘came Attorney General, until mid-J january 1969.:*5 :

“Mr. ‘Hoover repeatedly requested mé to at-

: thorize F.B.I. wiretaps on Dr. King while I was At-

_ torney: General. The last of these requests, none of

‘which was granted; eame two days. before the mur-

der of .Dr. sung: 4 (emphasis supplied):.

(continued from ies page)

any idea what was going on — and so the question of whether

Kennedy controlied the electronic eavesdroppers was irrelevant.

It was never raised. As Henry Ruth, who served in the organ-

ized-crime section at: the time, reminisces, “You look back and

you’ feel stupid, ‘We'd get furious because we’d.propos2 an inves-°

tigation and they’d say, ‘There’s absolutely néthing there.’ Now

I know what this meant—either they knew from bugging that

_ ‘there was nothing there, or they knew that ‘whatever was there

. was tainted—it couldn’t be used as evidence in court because it

was the result of a bug.” (Smphasts supplied)

“3V. Navasky, op. cit., at 139.

Letter from J. ‘Edgar. Hoover to Rep. H. R. Groes of December

7, 1966, reprinted in Navasky, op. cit., at 449, --

45 V. Navasky, op. cit., at 140.

35

. FBI. agent: admitted in a June 1969 hearing in the Cas-

sius Clay case, that he has been assigned to conduct sur-.

villance of Dr. King’s phone until May 1965, but that he

understood that the tap was continued by the F. B. I: until

a few days before K ing was assassinated. As it cannot eas- -

ily be assumed that an -F. B.I- agent is ever misinformed

when he makes a statement in open court, the ‘only possi-

ble conclusion is that the F.B. I. intentionally broke the :

law by ignoring both the Attorney General and | a specific

Presidential directive. ;

The ‘King case is a clear indication of the spirit wih

_. which the law-enforcement experts at the F.B.I. approach .—

‘the requirement of prior Attorney General approval. As

Courtney Evans, the liaison agent from the F-B.I. to At-

- torney General Kennedy, so succinctly put it:

; “Any law enforcement officer will tell you it is ©

7 an accepted principle of law enforcement to do

what has-to be done in the best interests of law en- °

forcement at the time you are doing it.” .

In simpler terms, the men who operate and undeastand

electronic surveillance equipment are, by F.B.I. Precept, |

above the law.

°

2, EXPERIENCE INDICATES THAT PRACTICALLY ANY.

ONE CAN BE REGARDED AS A FIT SUBJECT OF

"NATIONAL SECURITY SURVEILLANCE. _

The Dr. King experience, again, provides frosh histori-

eal evidence of the dangers of abuse inherent in the use _

of a vague category like “dangerous to-national security.”

46 Ibid., at 95.

‘We must presume he is telling the truth. Nevértheless, an

_ 27. SB,

A recent journalistic study of the Kennedy Attorney Gen-

‘ eralship indicates that the original ‘surveillance of Dr.

King occurred, not because he was suspected of plotti

sabotage, but because the supporters of the. Civil Rights

Bill wanted to protect both Dr. King (and thus the: legis-

lation) from allegations that he was being influenced by

_ known ‘subversives.’ As Mr. Katzenbach relates the epi-

sodes# | | | :

_ “There was some reason to believe that known —

subversives were making efforts to influence: Dr.

_ King’s movement and the question was how to deal -

with that, how-to confirm whether they’ were’ or

not, and under these circumstances, really as much -

for the protection of Dr. King as for any other rea-

son, and not because of any suspicion or feeling

_ that Dr. King himself was in any way subversive

or disloyal, Mr. Kennedy authorized a tap.”

So it Seems that at least one Attorney General of recent

times has interpreted “dangérous to national security” to

include anyone who is potentially subject to smear tactics,

and may thereby endanger an important piece of legisla-

tion. Such an interpretation has a frightening sweep. It

includes practically every politically prominent American,

_ whatever his position on the political spectrum. .

. _ Thus, recerit experience shows that in the absence of the

'.. Fourth Amendment safeguards the Attorney General can-

- not be relied upon to control either the F.B.I. or himself. -

“~

‘7 For a complete account see V.*Navasky, op. cit.,’ pp. 135-155.

48 Quoted in ibid., p. 149. .

: “”” ; . a

. ® - *

° . .

: . > aa a:

. . * 7 . 2 ss

pet} _ od

BT

C. The Government's Own Brief is Ample Evidence

- of Danger of Abuse, Absent Fourth Amendment

Safeguards.

1. TO PERCEIVE ABUSE ONE MUST FULLY ; APPRE-

-CIATE THE DIFFERENCE BETWEEN WHAT IS THE

ep oe es ae ee CARE |

- It is impossible to recognize abuse of authority, even

' when directly confronted with an example, if one does

not fully understand the difference between what the cur- _

~ rent practices, policies and institutional arrangements are,

and what they constitutionally ought to.be. To uncritically

identify the’ current set of policies with the ideal govern-

- thent contemplated by the Constitution, is -to reveal a lack

of conceptual tools. needed to spot failures to live up to the

Constitution. If one sees.no difference between the real

and the ideal, dite will be unable. to see when present poli-

cles are’ unconstitutional, or otherwi ise out. of step with |

_+ the basic values on which a democracy rests. This is a dan-

- gerous inability, as this Court saw in United States v. Ro-

bel, 389 U.S. 258, 664. (1967):

“For almost two centuries, our country has taken

a singular pride in the democratic ideals enshrined

in its Constitution . ... It would indeed be ironic

if, in the name of national defense, we would sanc-

tion thp subversion of one of those liberties ..

The scteriiice: brief denionstrates just such a dan-_

gerous inability. First, consider their argument that thirty

_ years of national security. eavesdropping on the’ citizenry .

| somehow justifies what was. done in this case. Not only is

their logic faulty ° but’ the eens assumes that merely

=

*° See aaa. p. 23."

because these activities have ose earciad they embody

our constitutional ideals. Nothing could be further from the

truth. If this were the ‘case, orderly social progress would

‘cease, and democracy stagnate. Some activities of our’ offi-

- cials may be better or worse than others, but it is dan- ©

gerous in the extreme to infer that because something is of-

__ ficial policy it can ipso facto be identified with the Te-

7 quirements of the Constitution and democracy.

- Second, consider ithe language used in their brief. The

Solicitor General sides indiscriminately back and forth be-

tween the need to preserve “ society” and the need to pre-

serve the existing system of government, i.e. existing gov-

ernmental policies. Although the distinction between these

two is crucial, he does.not seem to have appreciated: it: For

_ instance, we are told that the President has the duty to .

“defend the Constitution and. the government created by

it." But what happens if the government acts contrary

to the Constitution, as Respondents argue here? In that

case, the President’s clear duty: is to the Constitution, not

. to the acts which abuse it. This is’ nq less true if adherence

to Constitutional ideals endangers the security of uncon-

stitutional policies or institutions. The controlling duty is

the Constitution. The President only has a duty to defend

existing policies only as long as they are constitutional.-

Indeed, if. the policy in question is unconstitutional he

has an affirmative duty to attack it. The President’s duty

to defend policies and institutions which. are-admittedly -

constitutional i is not to the point in this case. Here’ the i Is-

50In the sense of “social organization,” see John Locke, SECOND

TREATISE ON CIVIL GOVERNMENT, reprinted in E. Barker, ed.

SOCIAL CONTRACT (Oxford eds” 7968). “Society” is thus distin-

guished from. “government,” the — cd = — existing

institutional organization. .

51 Brief of the United States, p. 15.

©

39

me is whether certain existing policies are constitutional.

If one automatically conflates, the Constitution and the

_ government, that issue is easily missed. - |

We are told that ‘“a fundamental right of any society.

is to preserve itself .and to maintain its government as a

functioning and effective organism.”** To be ‘sure, & SO-

ciety** has the right to preserve itself and its government. |

But the President is not society. He is just the fiduciary

_ of society. The only functioning and effective government

' which he has any right to preserve is a constitutional

government, i.e. a government in accord-with ‘the will, of

society. The only policies which he has any right to pre-

_ serve are constitutional policies. The right of society to

. maintain its ‘constitutionally chosen’ government is not

before this Court. When the government suggests that: it

- is, they reveal an inability to distinguish between them-

_ Selves and the authority of the People. .

Again, we read “‘the President must protect the govern-

. ment/and thereby the society for whose benefit it exists

8? Brief ef the United States, p. 15.

53In the Lockéan sense, see above.

' +& This mistake is made repeatedly, e.g., we are told that the duty

' of protecting “the existing system” is implicit in the “responsibility

for insuring [the viability of] our system of government,” Brief .of the

United ‘States, p. 15. But the former is only implicit insofar as fhe

existing system is constitutional, which is the point here at issue. In

Attorney General Mitchell’s affidavit, Brief of the United States, p. 3,.

he speaks of the need to protect the nation from attack on “the exist-

- ing structure of the government.”At p. 14, the Solicitor General again

asserts that the issue here’ is the:“protection of the fabric of society it- .

. self” and the “existence of an organized society.” Perhaps so, but only .

insofar as the government is trying to rend the fabric of. the Fourth

Amendment. — ae oe ' 4

*

a

aa

40

"5 But protecting the government is oe protecting: .

society insofar as the. policies are. being protected are

‘constitutional. If they are not, then. protecting the poliges 2

| is attacking society. By protecting’ the existing govern-

ment one does not thereby automatically protect society.

The real subversive is the man who protects the existing

government without ever considering the possibility: that

these .officials may be doing . something unconstitutional.

. If the government is unable to appreciate this elemen-

tal distinction when preparing a brief to the Supreme

Court of the United States, we hesitate to imagine what

_. happens jn the hustle and. rush of everyday law enforce

ment. Our constitutional liberties onght not make by 80

> fme a ‘thread.

2. GOVE! RELIANCE ON PAST PRACTICE.

practices to establish their constitutional‘ claim is itself

the best evidénce of théir willingness to expand any: ‘“na- .

_. ‘tional security” beyond all limits.

As was argued above, because Katz ovineial the Olm-

Stead. line of cases; past eavesdropping practices under

Olmstead establish nothing about a constitutional claim —

being’ made under Katz. This being the ¢ase, all this past

practice really establishes is an interpretation of Section

605 of the Communications Aé of 1934. Thus, what the

government is trying to do in this case is argue that a’

construction of @ statute. by past practice establishes a

constitutional exception to the Fourth Amendment. If the

government can so’ easily. infer exceptions to°the Consti-

% Brief of the United States, p.18.

The ovatus ‘ablenaph to use. past eavesdropping

y

. they please from the right to eavesdrop on ‘dangers to

_the national security.” : ae )

Il. ~

ABUSE IS TO ADHERE TO: FOURTH AMENDMENT SAFE. ©

A“

tronic surveillance are those provided by the Fourth

before surveillance begins; and (2): adherence to the dis-

‘closure requirements. of Alderman v. United- States, 394

US. 165 (1969). : ae

"Ac Approval of an ladependeat Magistrate Before

Surveillance Begins. to

Difficult as it may sometimes be to control abuses” of

abuse by default. As early as Weeks v. United States, 232.

course is unthinkable: — ae

“The tendency of those who execute thé criminal

of unlawful seizures and enforced confessions, the

Secured by the Federal Constitution, should find no

tution | from practices under a statute, it should be sim- |

plicity itself to infer the right to eavesdrop on whomever _

“THE ONLY HOPE. OF PREVENTING AND CONTROLLING _

“The only effective safeguards against abuse of elec

Amendment: (1) approval of an independent magistrate.

| electronic surveillance, the Constitution requires that we ;

try. For the courts to leave the field merely because abuses —

will be difficult to detect and correct is to sanction official «

US. 383, 390 (1913) this Court recogyized that such a.

laws of the country to obtain conviction by means

sanction in the judgments of the courts, which are

charged at all times with the support of the Con: -

latter often obtained after subjecting accused per- |

Sons to unwarranted practices destructive of rights

42

stitution, wild to whith people of ‘all sonditiadie have

a right to appeal for the maintenance of. such. fun- ~

damental rights. . (emphasis supplied) :

Of course, a clear constitutional requirement of prior ap-

_ proval by an independent magistrate will not’ guarantee.

that the F. B. I. and the ‘Attorney General will not abuse

their authority. But no ruling of this Court ever guaran-

tees any result i in that sense. Were. such a cee Te-

ce there could be, no rule of nw

e . e . Secs nm

or SUCH REVIEW as NOT DENY THR ‘AUTHORITY

OF THE ATTORNEY GENERAL TO DEFEND SOCIETY,

IT MERELY CONTRO THE METHODS USED.

The government would have us Dbliowe that any attempt

to observe the prior judici approval requirement of the .

Fourth Amendment necessarily denies the authority of

_ the Executive to defend tlie asiitution: We are told that

" the possibility of abuse is “not a valid basis. for denying

the Attorney General the authority” to use ‘surveillanep

in defense of the national interest.**

However, ’ no one has ever asserted that the Attorney :

‘General is without authority to conduct electronic surveil-

lances in defense of the society. The issue here is not whe-

‘ther he has ‘such: authority, but whether he must obserge

“Certain procedures in the exercise “of that authoritys Re-

spondents question not the end. which the goverfiment

‘seeks, but the means by which they seek it ee

_ Mr. Tustice Douglas put it well:* ae

: ee At az

\ “The Almanac of liberty. . is filled with epi-

" sodes where the means are. outlawed, though the

, ae | :

86 Brief of the United: States, p. 85.

81 Wm.-O) Douglas, op. cit., at 178.

? ¢

SIR RRR DME iy IE CREE Yon CERI A i NS YN RRR

ene “aac wii

43

ends iia are worthy. The greatest battles for

which police and prosecutors may use.”

clearly. when. they wrote :**

- ment’s judicial review requirements do- not prohibit

the President from defending the:existence of the ‘

state. Nor.does the Fourth Amendment require

that.law enforcement officials be deprived of elec-

. _ tronic surveillance. What the Fourth Amendment

°

2. NOR CAN | THE GOVERNMENT ARGUE THAT THE.

JUDICIARY IS INCAPABLE OF sucH REVIEW.

‘The linchpin of the government's acne against prior |

judicial approval ofnational security surveillance is the

alleged. inability of the judiciary to do -the job:*,

“TN Jational sicurity surveillance cases, however,

. generally [involve] a large number of detailed

be obvious to one who does not have extensive |

inferences.”

& seems that because the judiciary will not have exten-

sive background information, and because courts lack the —

_ mental ability to: dr subtle inferences, judicial review

wie wa fui R |

Respondent's brief.

88 United States v. ‘United ‘States: towne Court, | eee » Appendix to

- 89 Brief of the United States, Pp. 25.

~miu

liberty indeed have been fought over:the sienaneslaa Z

«

~The Sixth Circuit Court.of Appeals. saw the point equally a.

‘‘I]t should: be neied that. the Fourth ian

does is to establish the baetig, —/ must’ follow.”" -

| and complicated facts whosé interrelation may not _ -

‘background information, and the drawing of subtle |

e

‘e c°

* . e \. - :

“The. obvious response is that ‘simile handle detailed =

‘complicated facts. daily, and: regularly make very ,subtle

“inferences. Any common-garden-variety anti- trust case in-

- volves facts’ of staggering detail and complexity. Never. :

theless, the. government: ‘shows-1i0 reluctance. to bring anti-

trust litigation before the’ courts: As’ for the judiciary’s

_ ability to draw subtle inferences, it is presumptive in the. |

| ' ° dating security aréa are qualitatively different. Just last

«

°

extreme far. the governnient to tell. this: Court, or other

on Officers, that they: ‘lack the necessary intelligence. 3

- Nor-is-it possible to respond that‘ the inferences in ‘the.

' June the government eagerly brought before the courts |

(what they regarded) as a*yery grave issue of national _ :

security; New Y ork Times Co. v. United States, 403 US... ;

713, 29 Li ed. od. 822 (1971). “The facts were complex, the

inferences subtle. Neyertheless, the government, did not .

'- hesitate. Indeed, ‘the federal courts have traditionally had

- To trouble handling the most difficult and sensitive national.

. security cases, whether they. arise from. the seizure of steel

ares in. war-time -or from nuclear blasts under . Amchitka.

if there were really any doybt about the ability of the ~

: federal bench: to understand these matters, it would be an

“easy matter to direct thé requests to some judicial officer

who has the’ necessary experience and intelligence. Many a

; distinguished federal: .judge has served ‘as a prosecutor,

- attorney general, or in some other law ‘enfortement capa-

| S ‘eity. Moreover, if. permission to eavesdrop is denied by

{some *‘dull” magistrate, nothing prevents the government

.. from adding a small piece. of information to their case

and. reapplying before some other judicial offer." 99

60 It is interesting to note a curious cmsiesion in the. ouiaieaile

. - presentation. If judges lack ability as the government argues, there |

“| must be*instances where the government has been refused permigsion.

Yet they, cite. no instances where magistrates. fave’ — even Onm- .

nibus | Crime Control Act warrants. © ‘

> “. * —_ . on ” ow . a » se

- mae yee secre ee tit: OES Ee ETT NE AS SRR 3 ay |

49

In: reality the sisiuiiiesaiite argument goes as follows:

ss “Tn these cases thére i is never a reasonable basis on which

an independent judicial officer can base his permission.

“Therefore, an independent judicial officer lacks the ability os

to do his job. Therefore,: -he ought not be allowed to pass |.

on these surveillances.” But this would prove too much.

' A law enforcement officer can always argue that the rea-

‘son there is no -basis to approve the surveillance is\that

the magistrate is too stupid and the facts too complicated. .

Rather than erase the Fourth Amendment, the government

_ “adds: “And national. security is a special case.” However,

they have not given this Court any. particular reasons to —

believe. this. ipse diait. Nor have they. explained why all —

= national security cases are beyond the ken of judicial offi-

cers. Surely there’ must be a straight-forward national

security case occasionally.“ One suspects’ the government

- of engaging in a “definitional stop.”*? That is, national: se-

curity cases are special because. the government defines.

. national: security cases as er There. all’ discussion,

must end. 7 ‘

i Ribose to a nee Resgrrements of Alder.

In Shbiemen v. Umted States, 304 U. S. 165. (1969), Mx

~ Justice White made. it clear that in camera Teview for:

“arguable” relevance was an insufficient ‘safeguard ° of

Fourth Amendment rights. If an indiiwpltal, is to have

aed

61 Indeed, the national security cases on which the government re-

lies in their brief seem to have been handled stegeatety. Else why

would the government rely on them? ;

* See H. L. A. Hart, CONCEPT OF LAW (Oxford ed., 1961).

-63 Disclosure was required “Weven though attended by potential dan

_Ser to the reputation of safety of third na or to the — secu-

“ Tity,”. 394 U. S. ba 181. .

~ any realistic chance of discovering whether or not the goy- |

_ ernment has conducted illegal eavesdropping, he must see

the record of surveillance. The trial court is in no position

to do the job. . -

First, the court is never ina position to “place the tran-

script... of the surveillance alongside the record evidence

and compare the two for textual or substantive similari-

ties,” 394 U.S. at 182.” As suppression hearings occur be.

fore the main trial, the record, evidence will always be lim-

ited: “e

| Beisel: the court will oa ioe what to look for. As.

Mr. Justice White puts it, 3% U. S. at 182:

= [A] good deal more is involved. An oan

innocent phrase, a chance remark, a. reference to

what appears to be a neutral person or event, the

identity of a caller or the individual on the other .

end of ‘a telephene, or even the manner of speaking

or using words may have special significance to one

_who- knows the more intimate facts of an accused’s _

life. And-yet that information may be wholly color- *

less and devoid of meaning to one less well ac-

- quaimted with all relevant circumstances. Unavoid-

_ ably, this is a matter of judgment, but in our view

the task is too complex, and the margin for error

too great, to rely wholly on the in camera judgment

of the trial court to identify those records which. ;

esi have contributed to, the Government’s case.”

eq ;

At this. point Justice White. drops a very interesting foot-

. note, 394 US. 183 n. 14:

~. *£In both the volume 6f the rhaterial: to be enn

‘ined and the complexity and difficulty “of the judg- .

“ ments involved, cases involving electronic surveil-

lance will probably differ markedly from those si-

. tuations in the criminal law where in-camera pro-

. 4

cedures have been: found aéceptable to some ex-

tnt.” |

This - Court,- then, carefully distinguished cases involving ‘

complex facts and difficult judgments from cases where

. im camera examination is acceptablé. He goes on to’ quote

Dennis v. United States, 384 U.S. 855, 874-5, (1966), a case

_ involving communists in labor unions, for the proposition

that, 394 U.S. 183 n. 14:

- «6 [tT rial judges. ought not be burdened with the

task or the iy area of examining ‘sometimes

voluminous . . ..testimony,’ and : :°. it is not “real-

: istic to assume that a trial court’s judgment as to - .

_.. the utility of material for impeachment or other. ’

legitimate’ purposes, hewever conscientiously made,

would exhaust the possibilities.”

Here, on the government’s own showi ing, ra the case ‘‘in-

volves a large number of detailed and’ complicated” facts.

Moreover, the inferences that must be made are: ‘subtle.”*

This being the case it is impossible to expect even the most

- conscientious judge, by himself, to ‘see all the possibl¢

- .Ways in which something might be “‘arguably relevant.”

_ Again, on the government’s own: showing,” the trial court

“does not’ have the extensive background information”

rea Thus, he is. especially. likely to pass over some

“colorless” bit of information which-will have special and

vital significance to the defendant. In short, the very fac-

tors upon which the government relies to argue for an ex-' |

ception from Judicial review before surveillance militate )

* Brief of the United States, p. 25. .

85 ibid. :

66 ibid.

domestic subversives, laid’ claim to an’ area within which’

everything up with it. We shall soon see whether we have laid the

SS . (Simon and Schuster ed., 1966) at 237.

& .™ = .

: . . , : . ‘ . ——

‘ +

48

for complete: disclosure to the defendant after surveil--

lanee.

Nor is it sensible -to argue that Mr. Justice White meant,

in the interests’ of administrative convenience, to relieve

lower courts of the burden of sifting a voluminous record.

The point, rather, is that the danger. of an inadequate job

heing done by an individual trial judge is substantial, by

far too substantial to meet Fourth Amendment require.

ments. Even if the concern -were administrative conven-

. jence, the answer is to disclose to the defendant. Let him.

do all the work. of sifting through volumes of records, _

rather than the court. Alderman makes no sense if read as

an exercise of this Court’s supervisory powers. .

“i, -> *

_ Once before in’ this century the Attorney General has,

in the name of :protecting the national security against: |

his “administrative” procedures would be exempt from the

Bill of Rights. In the years from 1917-to 1921 the goyern-

ment accomplished the concerted, deliberate destruction

er For a government to withhold the whole truth is never wise.

“When the truth is buried underground, it grows, it chokes, it gathers

such an explosive force that on the day when it bursts out, it’ blows

mines for a most far-reaching disaster- of the near: future.” Emile .

Zola, “J’accuse! . . ..”, reprinted'in THE LAW AS LITERATURE :

-

eo

.

49

of the I. W. W.,* the first real (luateiel labor union. This _

was done in the name of administrative control of “alien”

radicals. It culminated with the Red Raids conducted by

Attorney General A. Mitchell Palmer in 1919-1920. These

raids involved such flagrantly lawless and massive inva-. |

sions of individual rights that a distinguished group of

lawyers (including Felix Frankfurter and.Roscoe Pound)

denounced the Attorney General in these outraged terms :*

“Under the guise of a campaign for the suppres-

| sion of radical activities, the office of the Attorney —

General, acting by its local agents throughout the,

country, and. giving express instructions from

Washington has committed continual illegal ‘acts.

Wholesale arrests of both aliens: and citizens have

been made without warrant or any process of law;

men and women have been jailed and held incom- :

municado without access. of friends or counsel;

homes have beer entered without Séarch-warrant

and property seized and removed; other: property _

‘ has been wantonly destroyed; workingmen and ©

_working women suspected of radical views have

. been shamefully abused and maltreated. Agents of

the Department of. Justice have been introduced in-

to radical organizations for the purpose of. inform-

ing upon their members or inciting them to activi-

ties; these agents have even .been instructed from -

Washington to. arrange meetings upon certain dates.

for the express object of sactitating wholesale

raids and arrests.

8 International Workers of the | World, ‘or “Wobblies. wo

R. G. Brown; Zechariah Chafee, Jr., Felix Frankfurter, Ernst =

Freund, Swinburne Hale, Francis Fisher Kane, Alfred S. Niles, Ros-

- @e Pound, Jackson H. Ralston, David Wallerstein, Frank P. Walsh,

Tyrell Williams, “To the American People—Report upon the Ilegal ©

. Practices of the United States Department of Justice,” (NY: Amefi-

can Civil: Liberties Union, 1920). *

: : - .

‘ : A a

é ‘ 2 = ° ~ - te

: ; * ”

Bn. * vs “! es i

Fee ’ ed _

Ly

oe Rene

50

A. In Relevant Respects, the Factual and Lined Clink

Made by the Government in that Period are Strik- e

ingly Parallel to Those Made Here.

The history of the Pilimac™ Raid périod” presents an

instructive and striking parallel to this case. Some twenty-

six years before the Palmer Raids, the United States Su.

-preme Court decided Fong-Yue-Ting v. United States, 149°

U. S. 698 - (1893). They held that deportation was merely

an administrative process for the return of unwelcome and

undesirable alients to their own countries, not a punish-

ment for crime. A-few years later the Court decided Y ama-

taya v. Fisher, 189 U.S. 86 (1903), the famous Japanese

immigration case. The Court held that the - Executive

branch had sole and final authority to determine an alien’s

‘Tight to remain in “this country, provided the alien was .

not. “arbitrarily”. deported, ie. was allowed an adminis- -

trative hearing. The court would not consider the fairness

of the’ hearing, 189 U: .S. at 100: :

“Tt is true that she Héads ; a ii of knowledge

of our language; that she did not understand: the

nature and the import of the questions pr opounded

to-her; that the investigation made was a ‘ore-

tended’ one ;-and that she did not, at the time, kww .

that ‘the investigation had reference’ to her being ©

deported from the country. These considerations

cannot justify the intervention of the courts.” -

‘It was enough that the alien, unable to understand or ie

English, might have brought. the matter to the attention

of the —— officials, tbid: :

7 The listing discussion is ‘iced on Prof. Wm. Seietite Jr,

ALIENS AND DISSENTERS: FEDERAL SUPPRESSION OF RAD- .

ICALS, 1903-1983 -(1963), a’ publication of the Harvard oe

’ Center for the — of the _— of Liberty in |, America.

_@

having primary control of such a case, as well as

who had power to order another investigation if

that course was s demanded byl law or by the ends of

justice.”, )

As ‘nie as there was a didi the Court. could perceive

no ground for judicial “‘intervention, . ... » none for the con-

tention that due process of law was denied,” 189 U.S: at:

- 102. See also, Pearson v. Witliams, 202. U.S. 281. (1906). :

Little did the Cour suspect that. by 1919 the Executive

branch would be using these decisions as ‘the justification

_ for mass arrests, general searches, and incommunicado in- —

terrogations of anyone deemed dangerous and undesirable.

As it turned out, what the Court had done was, in effect,

& do what the government is asking this Court to do in

the instant case—create an area, exempt from the Bill of

. Rights, within which the Executive branches’ treatment of

individual liberties will be secure from "eaty eon but ©

its ¢ own.

- Abuses jess slowly. In 1908 a antag search >

vealed no deportable anarchist aliens. In the eight year

- ‘period before the Palmer Raids only fourteen aliens were

‘deported for radical. beliefs.” From 1909 to 1912 a deter-

- mined effort was made to silence the I.W.W. ‘and their

anti-capitalist rhetoric. It failed miserably. With the Bill . ;

of Rights supporting the Wobblies, there seemed to be no

- legal way to silence them. As one old farmer was reported

to have complained, “You can’t kill ’em; the law protects

: em" In 1912 under pressure from the solid citizens of

- tah P.. 33°

"2 ibid., p. 48.

SR gt

: “They could ane been presented to the vlinws |

* upon an appeal to the Secretary of the ‘Treasury,

a eee

Southern ’ California: President Taft pronounced the

I.W.W. “lawless flotsam: and jetsam,” and promised “to —

take decided action.”"* However, a scrupulously careful

examination by the Department of Justice failed to reveal .

‘sufficient evidence to sustain a criminal indictment. Ba

cause the Attorney General had yet to discover the use.

fulness of deportation as an anti-radical weapon, he re.

gretfully concluded that there was no way to “show thie

‘strong hand of the United States,” as Taft desired.’s 1 .

Again in 1915, another federal investigation révealed

. no grounds for fédéral action.” As. a general matter; be.

fore World War I the suppression of labor organizers was

thus left to the States and to the vigilantes. ak

However; the threats of World War I changed maativns,

In the face of a rising nativist: feeling, Congress aban-

doned the conviction that radicalism -could be a home-*

" grown phenomenon.” Shutting its eyes to the evidence of.-

shocking industrial’ conditions Congress keyed its solution

of domestic unrest to the mistaken theory that described

current radicalism as a foreign import of the new immi- _

_ gration.” Then, as now, the tendency was to insinuate that

domestic dissidents are “interrelated” with foreign ene-

73 ibid., p. 53..

4 ibid, ?. 54.

78 ibid., p. 60.

ra 76 ibid., pp. 75, 83.

vat * ibid., p. 76. Evidence iiMeniin that most workers joined the .

‘LW.W. to make effective protest, rather than in pret for their radi- 2

cal dims, ibid. p. 97. ae tS as

e

7

- UNITED STATES (DaCapo edition, 1969), pp.

vad

mies, and then bootstrap to the conclusion that the Bill

of Rights no longer applied.” ee a he A

?

‘: In 1917 Congress overrode President Wilson’s second veto .

and passed a vague new jmmigration law, 39 US. Stat.

__ “Any alien’ who at any time after ‘entry shall be

f0tmd advocating or teaching the unlawful destruc-

. tion of property, or advocating or teaching anarchy-

or the otherthrow by force or violence of t the Gov-

ernment of the United States or of all: forms of law |

or the assassination of public officials . .- Shall, upon

the warrant of the Secretary of Labor, be taken into . .

custody and deported.” _-_—. BAe eB TE

The Congress. that passed this statute and amended it in

. 1918, like the Congress that passed the Omnibus Crime. Act,

-was impatient with the procedures of the Courts. Congress-

_men did not.want to determine the rights of anarchists and

- 18 ibid, pp. 76, 91, 100. During World War I ‘the insihuations be-

| came less subtle. Consider the following headlines from. the period:

“Kaiser’s Coin Peys for I. W. W. Sabotage,” San Francisco Chronicle,

‘Feb. 22, 1918, p. 1, col 3; “Bolsheviki Ship Brings Gold to Aid

L W. W.,” San Francisco Chronicle, Dec. 24, 1917, p. 1, éol. 8; “Bol-

+ gheviki and I. W..W.’s Planned U. S. Revolution, Indianapolis News,

Feb. 21, 1919; p. 3, col. 1. Generally see Eldri | R. Dowell, A HIS-

TORY OF CRIMINAL SYNDICALISM Bag ego ‘IN THE

3 and at p. 36,

“it is interesting to note. that no case of an I. W. W. sabovcur caught

‘practicing sabotage or convicted ‘of its practice is available.” ~

- This country’has a long tradition of explaining dissent, unionism,

and radicalism as the product of “foreign” influences. E.g., in People

| "Fisher, 14 Wend. 9 (N.Y. 1835) a group of tailors were indicted: for -

conspiring to injure trade and commerce. -Judge Edwards lectured them

as follows: “Every American knows, or ought to know, that he has no

better friend than the laws, and that he needs no artificial combina-

tion [ie., union] for his ‘protection . . .’They are of foreign origin,

and:I am led to believe are mainly upheld by foreigners ... ”. (empha-

_ gis added).

iy 3 : : : ‘ ;

oe % ae aye Kz 5. 455

|

*. # \

: other radicals ceby the long slow. process ‘of courts.” |

_one representative said, ‘‘A longtdelayed snail-paced” i

would only encourage radicals “to ply their trade ‘instead

of making an example of them.”* Nor was Congress con.

cerned that the ‘‘alien” involv. may have resided in the ©

Unif@d States for years.” As Prof. Preston summarizes

the official feeling at the time: “If repression was the aim,

then @ non-criminal, administrative procedure was far inore.

efficient [than the courts], and gave . .: . officials erent

: latitude in defining guilt."" x

Before -applying’ the 1917 Act, however, fladisiens a

. Labor Wilson: ordered a full-scale investigation of the .

' LW.W.’s literature and organic’ documents. This ‘examina- _

tion revealed “no lawless purpose,” as did a. similar in- -

. vestigation in 1918.%* The Secretary ordered that his in-

Spectors thoroughly: substantiate personal guilt before re- ~

- questing a warrant of arrest. Warrants would issue, the

Secretary ordered, only after an exhaustive inquiry into

_ the alien’s beliefs, teachings, and actions. Indeed, the Sec.

- retary insisted on a standard of personal guilt as exacting |

- as. that in judicial proceedings. Even before Sec. Wil-

son’s action, the: in th sesamcepen officials had. decently’ stiff

\ “Te ars 3 ° 2

19 ibid., me a : oe : ; ; ma

80 ibid., p.. 83. Consider the comments of Rep. Slayden of Texas:

“Now I wouhd execute these anarchists if I could, and thén I

would deport them, so- that the soil ‘of our country might not be

polluted by their presence even after the’ breath had gone out of —

. their bodies. I do not care .what the time limit is. I want to get

rid of them by some route . . . or by execution by the hangman. —

lt makes * “no ee to me 80 wes we get rid of them.”

_ ibid. eae f

82 ibid., pp. 101, 189.

83 §bid., -p. 102.

a ae

form standards to follow. Under ‘the Pseuieiiiiid rules,

eg. an arrest warrant was only issued when an inspector~ .

had made out. a prima facie case, and accompanied the

‘ application by” “sdme substantial supporting | evidence.”

Telegraphic application for a warrant was only permitted

- “in ease of necessity” or ‘when some substantial interest.

of the government would thereby be served." Thus, ini-:

tially. the Secretary was cautious about’ his interpreta- -

_ tions. As in the instant case, an effort ‘was nade to create

-and i impose an administrative substitute for probable cause.

. However, these administrative safeguards died young.

‘By March 1918 the commissioner eeneral was of the opin-

ion that Congress :*:

suredly. effective means of curing the active forms;

in other words intended to reach the word as mae

as the deed, and in some respects, to Fach the un

derlying thought as well.”:

Because of pressure from the lower cehelons,* iin sti

dard rapidly went from personal guilt to “evil thoughts”

‘or membership in a group known. for ‘their subversive |

ideas, to the joy of ‘state prosecutors and’ ‘employers. The

Supreme Court’s decisions were interpreted to give the.

. Executive’. authority. to deport aliens on the _groun

— whenever their one was “deemed

gn,

Le ows

& ibid., p. 14. oP

SM, pts 8. -

'. Sibid., p. 102.

87 jbid., ._p. 100: “Prosecuting attorneys and employers also hited

‘upon deportation as the-most flexible and discretionary weapon avail-

- able for their attack upon radical labor agitators. Proof of individual

cuit was the thes sony block in labor, disturbances.”

oe é

» .

neue - i.

| oe

ae 2 “Tal Iso intended to reach the ‘passive. and tingid. ;

= ious forms [of radical activity] ...as the only as-

“ee

__ eae

sintent with the publie welfare. on : What ta ‘remdined’

whe at the’ Cabinet level. never were applied in. ‘practice. The

eae difficulty 1 |

— them.*

fine theoretical Gistinetions, much Jess

ry :

Thus, why a man said he was Opp to csipitaligan: ‘they ,

‘ took him t an anarchist. In practice the-standards for

“>” arrest and deportation in I..W. W- cases became about-as

|. loose as any the immigration bureau inspectors could fle-

‘ “ vise: e. g., having. the appearance and attitude” of .at

mee Ww, W., evén though riot a member ; sympathetic associa. §

_ tion with anarchists, the I, W.-W. or similar gioape: “iv:

‘ing off summer’s. earnings” (a ‘characteristic: ‘typical of

“vharvest and lumber workers j in the. off-season) ; ; “an abnor- —

- mal head which: indigates criminal -propensities;” a “pre--

z dilection for agitation;” or a tendency. to “spread radical

: ‘propaganda.’ Nor could formal pronouncements by the

. Seétetary. of Labor restrain the abuse: he

“ly theory, the wayward hums of Tnenigratiis

was only carrying out the desires decisions of

en ie Secretary of Labor. It had a independént pol-

. ey-making authority. In practicg the bureau had

captured control of deportation, i

pretation, of Secretary Wilson

"3! erior perio officials into -su

stamps. jeg er

i: ; ‘i Despite the best intentions of the Sascha the privtlegel |

y anea created by the Court i in _— had become” a monster tf

by. =. ‘

w iid, “SS ie a ceo ege

89 ibid., ‘p. 188. we tes > “ot oe.

_ ibid, pp. 178-9,

— Mibid, p. 222,

- - Jn the government’s enthusiasm to stamp out the LW.W..

they resorted to a number oftacties. In September*1917 -

- Bureau: of Investigation agents Simultaneously - raided

LW. W. headquarters, locals, and residénees throughout

the nation in an effort to.get enough'information for crim-

inal charges. After the leaders of the I.W.W. were in-

_ dicted and. under trial for criminal conspiracy, the govern-

“ment conducted a concerted program to cit off funds for

- the defense effort. The Postmaster General baniied LW.W.

literature from. the mails.** The ban.. included not only: . '

_ requests for’ contributions to the defense of the Chicago

prisoners, but even the blank contribution forms them-

_. The tactics also included the. general search.. Anxious

to find any mai] that might contain contributions, one in- “

_.spector’s search warrant contained ‘the following particu-

lar description: ‘5,000, envelopes bearing’ U.S. stamps ~~

‘tnd’ indicating proper payment of postage thereon." Of. . -

ficers were authorized ‘to seize material ‘not “covered by |

- such warrants if the letters in question “appear . . . to be .

. part of the. general scheme: and propaganda of. the —

LW. W.™. Such searches and seizures are so general'as

‘to approacli those effected by modern electronic surveil-

> lance. Of course, President Wilson’s administration justi-

_, fied these searches as mere administrative procedures, ;

Pics

: *? ibid., P.. 118. —

De

|, Mibid. Everi the LW. W. resolution against cabotage was probi-

bited because it contained the word “sabotage.” Certain literature was .

found to have “disloyalty unexpressed,” or a “somewhat more audible —

_Undertotie of disloyalty,” p..147. °°. a 5

ibid, p. 148, Nee

* _. 98 ibid.

c ,

° ‘ * eer ‘ ? .

re . ° =

: . r : 4

. . 3 -° oa © i beste - - : -

. : . 4 ° 2 ,

‘ita ‘ .! cy “ ia Sey

a es

£e pursuant to the Executive’s power to deport subversive .

_, Ultimately the arrests -begang-under the supervision of |

& yourig man“by name name of J. Edgar Hoayer,- then |

head of the Justice Department’s old General Intelligence

Division. Incommunicado interrogations were favored. The

government could thereby convict a man out of his own ~

mouth, without the- unfortunate neéessity of . exposing |

their “undercover. informers. Indeed, much of the iHegal .

- and abusive treatment given*the prisoners may be traced

‘to the official decision to ‘protect undercover informers.”

.° "Thus, Mr. Hoover opposed counsel being present at ‘the

_ interrogation, for with. counsel present the prisoner would -

not incriminate himself. The government then would be

'_. foreed to blow their counter-espionage agents’ cover: at

_- the 'very start of a promising career. :

o> i in borderline eases where déportation seemed ff

debatable, the government would resort to information —

aie. undercover informants. Since confidential informa- —

~~. tion would not appear in the record, the alien Would have’ —

| no way of answering it. Prof. Preston summarizés : ‘Weak, .

technical cases were to become substantial, deportable ones

- on the secret word of undercover informants. With their

’. Feliability unquestioned, and their statements unchal-

. lenged, these agents would become the real arbiters of the '

immigration laws.’ Similarly, in the instant case, the

_ government seeks to keep secret the testimony of an under-

_ cover electronic informant. Withont disclosure there can_

be no way to judge the legality and worth of the surveil-

lance. Again, the government seeks to be the sole arbiter

_ .. Of the Bill of Rights. Sibi ace pee vere :

r’

*T ibid, p. 221. |

“ibid, p. 214.

ik is ssid 1 of tha young Mr. ‘Roclex (ak ba “did ‘oh

: - think of [the] program as either. autocratic or outragéous.

- [He simply carried traditional immigration practices to - ~ es

sg logical conclusion and . - expected good results.””* We :

respectfully submit that -deuapiunba. in’ the United. States *

cannot — mgr round of such os results.”

ee CONCLUSION == /

Wherefore, the judgment of the Court of Appeals should

be a. |

Respectfally submitted, a

Stephen L Schlossberg ee,

e General ‘Counsel ~

-M. Jay Whitman * ae

es, oF . .. Assistant General Counsel.

See oe ee "International ‘Union,

os ° ate United Automobile, '

__ Aerospace and Agricultural

ae eee

. 8000 East Jefferson .

_. Detroit, Michigan 48214

Tel: (313) 926-5216.

‘Dated: December 10, 1971 x we

‘ | . . °

ibid, p. 220, - ;