# Amicus Curiae Brief — United States v. United States Dist. Court for Eastern Dist. of Mich. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0043%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 407 U.S. 297 ## Text “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 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 : . ‘ 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- * 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- , ~ 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 © 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 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 . 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. . ‘ . . . » 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, - ; --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0043%3A08. Public record. Not legal advice.