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

Supreme Court brief1972

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Text

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Proce Gon a te i utes pg

Octosen Tnx, 1971. ? : a

“No, 70-153 | ae i

, JUNITER States or AMERICA, -

zi : Petitioner,

; Bic Gee :

Unrrep Srares Disrricr Count FOR THE Easreny District

"or Micuicay, SourHern _Divisioy, and / HpNORaBLe ‘g

: Damon J, —

ry: Fe wit yo Respondents.

ve An ° a

‘ON WRIT OF CERTIORARI TO THE UN ITED STATES COURT OF “APPEALS -

FOR THE SIXTH CIRCUIT

ve.

‘a BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE AMERICAN CIVIL: LIBERTIES UNION

OF MICHIGAN, AMICI CURIAE 3

“Henman Scuwarm, 2 e

77 West Eagle Street 2 9

_ ‘Buffalo, New York 14202

Marvin L. Woutre

- ™ American Civil Liberties Union |

156 Fifth Avenue ye

New: York, N. ¥. 10010

Erwin B. ELLManw

1520 Penobscott Building |

Detroit, ‘Michigan 48726 ©

Attorney for Amici Curiae

ARGUMENT ©

- Introduction. _........... - gta acess ce eee a:

jF “The Gov ernment dain the right to eav -esdrop

electronically on political dissenters without

any external =o or other meaningful con-

ROI ite ee prteendlacewvenscnyttrenntncnvensemeateacnceiwcdibes *

A. The Gov ernment’ s Statement Minimizés. the

Issues’ | CS 5 1) en Se .

B. The Court of eels. Correetly Analyzed

the Enormous Scope and Impact of-the Gov-

ernment’s Claim ctetiiate MaperincticunsbedP sutuenigcrieanmaasnaties _

“'Gé The Gov ernment Beak to “AV oid ae Judi-

cial or. Other Check on Its Electronic Sur-

ae eillance acaseus 5 cus deabbiecomumtenuinacentan eee a

National security surv eillance will rarely

be revealed - asrensntenitentecnsencdesnvenstacansons riggs

2. Even where the national security surv eil-

‘ lanee does come to light in a criminal

prosecution; the Government would make

_ the judiciary virtualty a rubber stamip -

. - PAGE

3. Congressional Supervision is equally.

limited Beaieeeiecat Rees p

=D. Whe Range of Possible Targets of Such Sar-

eS 4 ' veillanee Is Virtually Unlimited, and the

_ Amount, of Such Surveillance Far Exceeds

9 . That Conceded in the Government’s Brief . 13

l. The range of possible targets. of such ~

surveillance is virtually unlimited B

2. The extent of national security surveil.

lance is greater than that conceded" by

_ the Government’s Brief eer ae - 16

K. If This Exemption From Constitutional Re- —

7 .- Strictions Is Granted, There Is No Rational

? Basis for Not Granting a Similar Exemp-.

, Hon From Other Constitutional Protections 21

II. The Government’s demand is inconsistent with

the Fourth and First Amendments... 29

A. The Government’s Demand Is. Inconsistent

With the Fourth Amendment 2

B. ‘The Distinction Between Surveillance for

Prosecution Is Immaterial terest Be ceeee 3

C. The Government’s Demand Is Inconsistent. |

With Freedom of Speech. and Association

Protected by the First Amendment wncuvsenseee

III. There is no. justification for grariting the Attor-

‘ney General ‘such vast unchecked powers over - ;

. the lives and liberties of the American people. %

A. The Government’s Argument Here Is Actu- |

ally. the Same Argument for Inherent _

Powers Presented and Rejected Below; the

President’s Power. Over Foreign Affairs

Offers N ) Support for Its Claim 20... 29

B. Phere Is No Statutory nna for This

Power ... _ Ses 34

C. Presidential Directives Cannot and Do Not 7

Authorize This. Power .. ~38

D. Practical Considerations of Competency,

‘Confidentiality and Utility Do Not Justify -

Granting the Attorney General This Power 39

1. The president's obligation to defend. the

nation does not justify. wholesale inva- .

sion of. individual liberty by. the Attor-

ney General ....: | | - 40

ya The Attorney General is no miore com-

petent or trustworthy than the courts in

determining. when and. whether elec.

tronic surveillance should be permitted .. 40

“3. “Centralization” and “uniformity” are

not sufficient to outweigh: the potential

and actual harm from the widespread

electronic surveillance actually engaged

in by the executive | ie 42 |

IV. Alderman: v. United States, 394 U. S. 165, is ‘a

= constitutional decision and should not be ov er-" 7

-Fuled -.......... Seeemees | -. 43

PAGE é

‘iv

* PAGE

A. Alderman Should Not Be Overruled ............ 43

B.. Alderman Is a Constitutional Decision ...... re

Ll The Alderman, language _— esteet Sree 43°

2. The “supervisory power” aes po 4H

“ 3. Relevancy, standing and legality 00. 4 |

: ConcLusion SLANE AE ee Eee 47

_Avrenpix A—Statutes (18 U.S.C. £2518(1) () and 18

U.S.C. §2518(7)) ns Peete Secs Sere ere 49

_ APPENDIX it Deparanent of J ustiee—Senator Ken-

| nedy Ronee potent eevee ie ae ae ne nenn I erenre ee — jl

| -APPENDIX C—Letter to Hun, John N. ‘Mitchell from — |

Constitutional Law Experts ......... a ase 67

: | _ _ TaBLe oF AUTHORITIES

_ Cases" |

Abel v. United States, 362 U.S. 217 (1960) eeesseaece UE

oe v. United States, 394 U.S. 165 (1969) ........ 2,5, 43,

i - | 44, 46, 47

Baggett v. Bullitt, 377 U.S. 360 (1964) ..... sone u

a _.- Berger v. New York, 388 US. 41 (1967) oeeeeeseeceene 10, 24

mm Bloom:y. Illinois, 391 U.S. 194 °(1968). ceoveeeesesetsneeeseseseee 4

Boyd v. United States, 116 US. 616 0.2. 2

| Bore v. ama 395 U.S. 238 (1969) ae Neeseleseseeee, 4D

PAGE™

Camara. v. Municipal Court, 387 Y.S. 523 (1967) : Sa 24

Carroll v. United States, 267 U.S. 132 (1925) “A 37

Chambers v. Maroney, 399 U.S. 342’ (1970) 24,°95

Cheff v: Schnackenberg, 384 U.S. 343 (1966) 2. 45

Chicaga’ & Southern Air Lines, Ine. v. Waterman, 333

U.S. 103 (1948) oe 30.

Coolidge v. pital Hampshire, 403 U. g. 443 (1971) ee 21,22

23, 40

Back v. Carrington, 19 How. St. Tr. 1029 eee 26, 27

Ferguson v. United States, No. 71. 239 ak: Ce 30

Giordano v. United States, 394 US. 310 (1 969). . Sassen 23

Goldman v. United States, 315 U.S. 129 (1942) 2.2....:9-10 ©

‘Gouled v. United iceman 255: U.S. 298 (1921) becouse . 21

Irvine v. California, 347 US. 128° ($954) aoe 9

‘Jencks v. United States, 353 U.S. 657 (1957) .... se 45

‘Johnson v. United States, 333 U.S. 10... pole — 40

Katz v. United States, 389 U.S. 347 (1967) . vtensetescreseneDBy 24

_ Korematsu v. United States, 323 U.S, 214 (1944) 1... 21

Lopéz v. Unit. States, 373 U.S. 427 pe ceecrpesseeee lO, 28

- Mapp v. Ohio, 367 U.S. 643 (1961) alee 44

Marcus v. Search Warrant, 367 U.S. 717 (1961) .200.. 26 |

| ny v. United States, 394 U. S. 459 (1969) 2. 45 .

NAACP Vv. Alabama, 307 U.S. 449 ( 1958) re eee: af

Olmstead v. United States, oT US. 438 (1928) _ a 9,29,48 -

Palermo v. United States, 360-U. S. 343 (1959) an 45

--. Sehmerber v. California, 384 U.S: 757. (1966) ......:11, 24.95

Sibron v. New York, 392 U.S. 40 (1968) %

Stanford v. Texas, 379 US. 476 a eee,

; ‘Taglianetti v. United States, 394 US. 316 ees 44,46 .

- Terry v. Ohio, 392 U:S. 1 (1968), 2... _ .

Totten v. United States, 92 U.S. 105 (1875) . a a >)

United States v. ‘Bieber, Crim. 71-479 (E. D.N.Y.)

United States v. Clay, 430 F.2d T65 (5th Cir. ee

_ rev'd on oth. issye, 403 U.S. 698 (1971) 32)

United States v. Curtiss- Wright Corp.,.299 U.S. 304. 3

United States v. . Dellinger, et al., Crim. 69-18, N.D.

Ill., decided Feb. 20, 1970 ........ een _ :

United States v. Donghi, Cr. 1970-81 (W.D.N. Y.) —

United States v. Lee, 106 U. S. 196. (1882) 2. r

United States v. Robel; 389 US. 258 ( 1967 Pte 47, 48

United States v. Smith, 321 F. Supp. 424 (C.D. Calif.

1971) m esl scnstvtondlg I

Warden v. Hayden, 387 U.S. 294 (1967) seossesssesteeonienee dl, Bo

wyman v. James, 400° U.S. sad fable See 4

Youngsiowh Sheet and Tube Co. Vv." Bawiee. 343 US.

879 (1952) ae ek

Constitutional Provisions :

United States Constitution | |

First Amendment -............... “easesnsealeneeeDy 4, 5, 6, 22, 26, 2

Fourth Amendment a sasseeey 4, 5, 6, 22; 23, %,

. ' = ; ; 27, 29, 43, 44

”

. PAGE

| Statutes : | |

18 UST. §2500 et seq. 9, 10, 11, 14, 33, 35, 39

18 U.S.C. §2511(2) , ueanen 33

“18 UWS.C. §2511(8) oc cncreee ove 4,5, 11, 13, 32, 34.

18 U.S.C. §2518(1)(e) oe . .. 10

BU S.C§2518 (0) en 22h,

18 U.S.C. §2518(8) .eceeeneeeeeeeeneecnee . —- Al

Communications Act of 1934: es seat seecnennineee BB) 39

Omnibus Crime Control Act of 1968 ..... ee . ‘38 a

. Other’ Authorities :

ABA Minimum Standards for Electronic Surveillance ss

(1971) .... : ae Oe 32°

Brownell, The Public aime and Wiretapping, 39

Corn. L. Q: 195 (1954) _.:..... apace neopets 42.

Buffalo Evening News, December 1, 1970, p. 1, ‘col: 1. 15°

Comment, Border Searches and the Fourth Amend-.

ment, 77 Yale L. J. 2007 (1967). vc. mh

117 Cong. Ree. 6477 (May 10, 1971) 36

IIT Cong. Rec. $6479 (May 10, 1971 daily ed.) 14,16

| 118 Cong. Ree. 14751 (May 23, 1968) ns

- 8Crim. L. Rep. 9371-72 (February 17, 1971) _.... severe BQ, 83

Donnelly, Comments and Caveats About the Wire: Tap-

ping Controversy, 63. Yale L. J. 799 (1954) 42

| Donner, Spying for the FB, ‘New York Review of |

| Books, April 22, 1971; p. 31 ms - 28

1 Sign.

. *

or ae

PAGE .

Gover ‘ument’s Reply Memor randum of Law an Support |

of Its Motion to Dismiss the Amended Complaint

(dated 5/18/71), p. 7 in Kinoy: v. Mitchell, 70 Civ,

PBI. Seeks Panther Datas N.Y. Times, Dee. 14, 1969,

$1, p. 1, | Sa Sennen nee nee meena ree oe eeceene wie, B

Hearings Before the Senate. Subeoumittes on ‘Acnin:

istrative Practices and Procedures on Invasions of . —

Privacy by Governmental Agencies (1965-66) ..... 8

Hearings. on W iretapping Before Subcommittee No. 5

of the Honse’ Committee on the Judiciary; 84th

‘Cong., Ist: Sess. 98 (1955) -........ i ee ry

Hill, The Bill of Rights and the Gupeni sory Pow er, 69 :

Colum. L. Rev. 181 (1969) ceveteerienmsceectcseegeceesecceeeee ADAG

: Kauper, The Steel Seizure Case: Congress and the — ;

Supreme Court, 51 Mich. L. Rev. 141 (1952) iiekees a

Navasky, Kennedy Justice 135 (1971) -..........-....... 15, 18, 1 |

Rogers; T he Case for Wiretapping, - Yale if J. 79200 =

(1954) omtenmie Se EET ae Se kT pag ae

}

Schwartz, The Legitimation of Electronic Eavesdrop-

ping: The Politics of “Law and Order, ” 67 Mich. L.

Rev. 455° (1969) oe eeecegecccteseeeneeeceens pe! 16, 26, 28, 38

= % Rep. No. 1097, 90th Cong., 2d Sess. 69 (1968) ..” 34,36, 3

38, 41

Theoharis and Meyer, The “National Recactiy y” Justi--

- fication for Electronic Eavesdropping: An Elusive :

Exception, 14 Wayne L. Rev. 749 (1968) ..........-.. 15, 36, 38.

U:S. To Tighten Surveillance of Radicals, N.Y.-Times, _

as, 12, 1970, §1, p. 1, col. - Ce ) 2B

- In THE

- bapeme Court of the United. States ,

OctoBER TERM, 1971 .

No. 70- 153°

Unirep States OF AMERICA,

—against—

* Uynirep STATES DIsTRICT Court FOR THE LASTERN DISTRICT

or MICHIGAN, SOUTHERN. Division, and HONORABLE

Damon J. KEITH,

- Hesopndeal:

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

tat _. FOR THE SIXTH CIRCUIT

—

. BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

‘AND THE AMERICAN CIVIL LIBERTIES UNION .

‘OF MICHIGAN, AMICI CURIAE

Interest of Amici*

The American Civil Liberties Union is a nationwide non- —

partisan organization of over 160,000 members engaged

solely in-the defense of the Bill of Rights. The American

Civil Liberties Union of : Michigan is. an affiliate of the

American Civil Liberties Union and functions within Michi-

gan where this case arose.

* Letters of consent to the filing of this brief have been filed. |

with the Clerk. .

' Petitioner,

‘ During its fifty-one year existence, the A@LU has been |

particularly concerned with protecting the rights of free.

dom of expression and privacy, safeguarded by the First

and Fourth Amendments to the Constitution.. The powers.

asserted here by the government would gravely impair

- those essential liberties and would, sev erely - undermine

“the right to’ be left alone—the most comprehensive of

7 rights and the right most valued by civ ilized wien.” >

€

Questions Presented : = ae

Ko 1. won the Atiewdd General have the constitntiia

-\ authority to eavesdrop electronically on Americans he con-

siders threatening to.domestic security, without being sub-

\ Jeet to any significant judicial control?

\ = Should.. Alderman v. United States,

“(1969) be overruled? te i

—_ \ eo : " ;

“Constitutional Provision and Statute Involved

‘The /pertirient provisions of the. Fourth Amendment

_ and of the’ Omnibus Crime Control and Safe Streets Act of

~ 4968 appear, in the Appendix to the Brief for the United

= and in Appendix A hereto. \;

} ‘ Re er

‘ a

~Summary of Argument

A.: The Government seeks to cast the questions involved

herein in “unduly narrow terms. According to thie Govern-

“ment, this case now* involves : ;

Br. 2, 12-13); (2) “a lesser invasion of privacy than a.

Physical search of a man’s home’ or his person” (Govt.

Brief 13); and (3) “no novel principle of constitutional |

law, but rather the application to these facts of existing

doctrine” (Govt. Br: baa ae

-B. The Gov ernment’s winition obfuscates ‘what is truly. :

at stake: the power to-eavesdrop by electronic devices on

a huge range of people distrusted by the Attorney General, eS

- with virtually. no judicial or other scrutiny except. ‘spo-

radically, and — only superficially.

oe fe J iit nates will rarely take place, sincé this sir"

veillance is allegedly not for criminal prosecution but only

‘ for intelligence purposes, and will rarely come to light. -

..2. When judicial review occurs, the Government would,

limit it to ‘Virtually a rubber | stamp. Sea Me ae

3. The range of poole subject to Pansat surveillance

Wc.

Te. The brief on the merits coneédedly. involves “a narrowing of”

' the question’ presented by the petition..but is allegedly “covered

by” it. (Govt. Br. 2, n. 1). “References to “Govt: Br. ——” are to the

brief for petitioner. References to “App. =——” are to the Ap-

pendix to the Petition for Certiorari. ; .

~ pln

(L) “sblely” the absence of prior judicial scrutiny (Govt. en

- under both the —— standard’ purportedly relied oe

et oF

. \ . ° . °

thre Governnieat ‘in is U Sc. §2511(3), sind as |

oe . Upon by

Ben us evidenced by past practices, is broad enough. to include. ;

a ° virtually Any: ‘eritie of. the established “structure” of. gov-

Ne ea ernment} the Tength-of time involved in such surveillance

y is very reat}: ‘the record Shows that this power has not in

iis . ~faet | been used sparingly, Indeed, the. Government’s figures

; showing a “closely limited” number of surveillantes are -

. substantially incorrect in several vital respects.

i a0 er an exempiion from. constitutional limitations *

* tig electronic’ surv eillahce justifies similar exemptions for ‘

es vothier types-of investigative devices and techniques, Since |

there. js. no rational basis for limiting such an exemption

to electronic: surveillance. /

“ae.

«oe ba c

oo, “C Granting” such: a pow er, would ‘seriously. encroach:

Ae ce ‘hot only upon‘ the. Fourth: Amendment but: also ‘upon the.

ro Amendment. - |

: oh Electronic ‘guiyeitianes seriously threatens Fourth

_ Amendment values,” far more than a conv entional search.

eae For. this ‘reason, Congress. and this Court - -haye required

Se ere procedural : prerequisites: to: electronic surveillance

-_ .than to:the een search, not: fewer as the Govern.

°, iment: i Proposes. :

e .”\

2 “Psctitinie surveillance seriously threatens First-

a oe. -Amendtent. values. and interests, particularly when em-

ar / ese against political dissidents, as , it- so often has

been. a he ae ‘

oT : D. There’ is no "justification in law‘ or in reason ‘for

Ba ‘granting the Attorney General such; dangerous power over

~~ - the lives and ee of. Americans. cag te Malet a

1. There is Tio judicial precedent for such powers in the

| ‘area of domestic “threats” ; indeed, this Court has ex-

~" pressly denied the Executive such power. Decisions in the

field of foreign affairs:are not germane ; the, Congress and

the Attorney: General have both recognized: the difference

_ between the two spheres. |

2. ‘Congress has not authored such a power in 18

U.S.C. $2511 (3).

3. Executive memoranda are ‘neither controlling nor

even pertinent, since they were based on different problems:

in different settings. han i. ee .

—_—"

4, Squid policy counsels, ‘Sainat ‘the grant of ‘such |

power. ie

a A vague and (alesiiaints inv ovation of “national se-

curity” ' should not suffice to impair the fundamental values

incorporated in the First and: Fourth Amendments.

‘bp. No showing: has been made | that the judiciary is

either too incompetent or too unreliable to screen such

-surveillances, or. that. the Attorney’ General is uniquely so |

qualified.

ats

¢. The benefits of “uniformity *? and eentredinntion” are

“unproven and dubious.

x ‘Didersinn v. U hited States; 394 US. 165 (1969),

is sound law and nothing that has oceurred since that deci.

_ Sion justifies Sie it ‘in .any way.

+: Alderman is based on the Fourth Amendment and

hot on’ this Court’ s non-constitutional — isory. power.

t eo

of the government... aré creatures of the law and are

bound to obey it.” ‘United States v. Lee,. 106 U.S. 196, 220

(1882). In recent years, the rule of law has: been tested

. as never before. The nation is still torn by bitter dissen.

- alienated and disaffected ; unemployinent remains high.

and moré vulnerable. The temptation to override it, par-

Alien -and Sedition Acts, MecCarthyi ism, ‘and the Palmer

_ raids so tragically demonstrate; the temptation among the

disaffected to ignore it is equally great.

electronic spy ing, solely upon the Attorney General’s secret

- » subjective judgment that it is “not unreas®able” to do s0.

"and without permitting any outside check on that judgment.

ARGUMENT

Introduction

Almost 100 years ago, Mr. Justice Miller wrote: “Np

man is'so high that he is above the law . . . . All officers

sion over a war that lias cost us much blood, treasure

and - domestic tranqnility ; ; blacks, Mexican-Americans,

Puerto Ricans and others have, been embittered by long

years of oppression 5 many of our young people remain.

~ At such times, the rule of law becomes both more vital:

ticularly among the powerful, is often irresistible,: as the

This case brings before. thie Court. one of the most se-

rious challenges to the rule of law from the governmental

side: an attempt by the Executive Branch and the Attorney

General to invade free speech, association, and privacy by.

This demand has few, if any, parallels in our history.

Ignoring—our traditiéns of checks and balanees, limited f

delegated powers, and clear Fourth and First Amendment,

restraints, the Government demands the right to. apply the

most penetrating and unlimited electronic spy ring devices

on all individuals and groups who, in the Attorney ‘Gen-

eral’s eyes, appear “dangerous. ” No nation can survive

such a power and remain free} no democracy can function

where dissent and free association are. so jeopardized; no

_. society can allow the Executive so gross an exemption from.

“those wise restraints that make men free” without teach-: -

‘ing its people that the mandate OF the rule of law runs in

one direction only.

;

The Government claims the right to aie elec-

tronically. on political dissenters without any external © .

— or other meaningful controls: |

A. The I Siatewnent Minimizes

’ the Issues Herein.

_Inits petition for certiorari, iia Gov ernment submitted

the following question for reyiew by this Court:

Sw hether dheetettitie surveillance is reasonable within —

the meaning of the Fourth Amendment when it has.- -

_. been specifically authorized by the President, acting

through the Attorney General, to gather intelligence

‘information deemed necessary to protect against at-

‘tempts to overthrow the gov ernment by force or other

unlawful means or against other, clear and present

‘ dangers to the gov ernment’s Structure or existence.”

%, (Petition 2.)° ;

In its brief on ro merits, the Gov ernment has restated

its position much less sw eepingly, though claiming merely

a “narrowing of the question.” Asserting that electronic.

surveillance involves a “lesser invasion of privacy than 3.

_ physical’ search of a man’s home or his person,” (Govt

Br, 13; emphasis added), the Government frames the issu }

as ‘if it involved only another applieation of the principk

that some searches need not be preceded by a. warrant,

Thus, concludes the Government, “this case . .. involvis

no: novel principle of constitutional law but. rather: the

application to these facts of existing doctrine.” (Ibid:)

The Government deserves an A for effort, but an F

. for. correctness. Its attempt to reduce a mountain to:

molehill is deféated by the most obvious facts about. elee.

tronic eavesdropping and by the virtually absolute ex

emption from judicial or other scrutiny that ‘the Gover.

ment seeks. Judge Edwards wrote of the Government’

7 contention below, “the sweep of the assertion of the Pres.

dential power is both eloquent and br eathtaking. ” App. Id

' The claim here is no Y less sweeping.*

B. The Court af Appeals Correctly Analyzed the Enormous

Scope and Impact of the Government’s Claim.

The heckbons of the Government’s argument is that the

. reasonableness of a search depends on “a weighing of the

eompeting interests involved” (Govt. Br. 11) and that “»

balancing the competing interests involved . . . the over”

hearing of a telephone conversation . . . involves a lesse

invasion of privacy than a physical search of a man’s hom:

or his person” (Govt. Br. 13). If the Government ha:

weighed some of the factors wrongly, then the equatin

supporting its ‘argument collapses.

* Indeed, the Court of Appeals. agreed to consider the case Ol

the merits because ‘ ‘great issues are at stake . for all pa COE-

cerned.” App..15: , wa

“9

And the Government has w eighed wrongly, tragically So.

‘Indeed, it is appalling to have it demonstrated so clearly

how little weight the Government attaches to privacy and,

‘all that it means for a free society.

Apart ‘from the fact that the typical electronic surveil-_

lance involves not merely “a telephone conve ‘rsation” (re-

gardless of who the defendant is) but many _thousands,*

electronic surveillance is generally acknow ledged to be one

of the most dangerous ‘and intrusive threats to privaey.

It is the prime example of Mr. Justice Brandeis’ forebod-

ings in Olmstead v. U nited States, 277 U.S. 438, 473 (1928)

that “discov ery and invention have made it possible: for:

the government, by means far more effective than stretch-'

ing upon the rack, to obtain disclosure in court of what is’

whispered in the eleset.” Even w here circumscribed within

the confines of ° 18 U.S.C. $2500 et seq., it represents an in-

tensive and extensive invasion of private speech and.

thought with almost no parallel. When a continuous tap

_ is placed on a telephone, the eavesdropper almost inevitably —

hears all the conv -ersations of ev ervone who talks on that

line whether the sub ject ealls out from the tapped num--

‘ber, calls in to that number, or is called by ‘someone using

that phone, . and no matter how irrelevant or privileged

the communication. A room microphone is ev en more in-

trusive, for it can catch every. intimate, irrelevant, or

privileged utterance of each person in-the room or area. a

bugged, whether it be the bedroom, see Trvine v. Cali-—

fornia, 347 USS. 128 (1954), or the office, Galdman vy.

* See, ej. Report ‘of the. Aduiimistrative Office of the United —

"States ‘Court of Applications for Orders Authorizing or Approving

_ the Interception of. Wire or Oral: Communications for the Period

January 1, 1970 to December 31, 1970, Table 4° (1971) (average

number of conv eraations ov erheard per federal intercept was 821).

Se MONS TTT ORI SA aR RR

United States, 315 U:S. 129 (1942): or a public telephone.

Because these devices intrude so deeply and so grossly,

they discourage people from speaking freely; as Mr. Jus.

tice Brennan has warned, if these devices proliferate

widely, we may: find ourselves in a society where the only )

sure way to guard one’s priv acy “is to keep one’s mouth

shut on.all occasions.” Rt fade: v. United ee 373 US. |

427, 450 (1963). =

. This is why this Coart Said in ne Vv. New Y ork, 388

US. 41; 63 ( 1967), “Few threats to liberty exist which are

greater than that posed by the use’ of eavesdropping de-

vices.” See also id. at 56, 68, 69. This is why Congress

limited the right to eayesdrop electronically so miuch more

than it limited conventional searches. Indeed, the whole.

elaborate panoply of 18 U.S.C. §2500 et seg. is a recog.

nition of the uniquely. dangerous nature of ‘electronic sur- °

veillance. Thus, for example, no: warrant may -be. issued

; for. electronic surveillance’ unless the Court is convinced

that no other practical means exist to obtain the necessary

information, 18. U.S.C. §2518(1) (ec), a requirement not im-

posed for ‘more: conventional searches.

Cc. ‘The ntaiaia' Seeks to Avoid Any — or ‘Other

Check on Its Electronic Surveillance.

F® National security surveillance will rarely be revealed.

Even if the weight assigned by. the Gov ernment to the

effect of electronic surveillance were correct, the freedom

. from restraint sought by the Government goes. far beyond:

that constitutionally permitted for a conventional search

For the issue is not’ merely the point in time at which:

_ the Government: must obtain a warrant, but whether it

must do so at all.” The Government is not seeking merely to

avoid the necessity of having to‘ obtain a warrant before

it taps or bugs, as in Carroll v. United States, 267.U.S. 132, .

Schmerber v. California, 384 U.S. 757, or” Warden v. Hay-

‘den, 387:U.S. 294, pat rather to.av ‘oid any —— Oreste

whatsoever.

Unless the binvebiinnet is required to get a. warrant. in

advance or shortly thereafter, compare the ‘ ‘emergency” |

provision, 18 U.S.C. §2518(7), its eavesdropping will rarely ~

ever be scrutinized by a court. Unlike a conventional.search

which wilt inevitably be disclosed immediately, electronic

surveillance is surreptitious and will rarely come to light

unless voluntarily or accidentally revealed in an occasional

criminal prosecution (Govt. Br. 21). Since national se- |

‘enrity surveillance is used primarily for intelligence and

not for prosecution, there is little likelihood: indeed that it.

’ will ever come to. light. - ‘Thus, whereas the kinds of searches

involved i in e.g., Carroll, Schmerber and Warden v. ‘Hayden, se

will ultimately be subject to some check, as will the elec-

tronic surveillance pursuant to court 7 the national

security surveillance almost nev ver will be.*:

* The. solnt ' was. winks: very pete by the: Government in the

Government’s Reply Memorandum of Law in. Support of Its

Motion to Dismiss the Amended Complaint (dated 5/18/71),

pp. 7-8, in Kinoy v. Mitchell, 70 Civ. 5698, S.D.N.Y., where it

| described the electronic surveillance: encompassed by: 18 US.C.

§2500 et seq., inéluding §2511(3) as follows:

The very first words [of §2511(3)] clearly exempt national

. Security wiretaps from the’ necessity for. connection with the

- specific crimes .listed- in’ ‘Section 2516, from the specificity, —

probable cause, and duration litnitations of Section 2518, from

the inventory provision of 2518(8) (d) and indeed from court

supervision other than when offered ‘in a criminal prosecution.

- It ean be seen that the statutory scheme is one of absolute

‘secrecy for -national security wiretaps, limited secrecy for

authorized . wiretaps, and no secrecy permitted for banned

ome —

2. Even where the national security surveillance does rome ig

light in a criminal prosecution, the Government woul |

make the judiciary. virtually, a rubber stamp.

Repeatedly stressing the alleged incompetence of the .

judiciary to review “the judgment involved in determining

whether to authorize a particular surveillance” (Govt. Br,

22, 24-26, 33), the merits of which assertion. will be dis

cussed below, the Goy ernment w ould. jimit judicial Teview

to determine whether |

“the determination that the proposed surveillance re.

lates to a national security matter is arbitrary and

capricious. .. .. The Court should not substitute its:

judgment for that of the Attorney General on whether

- .the particular organization, person or events involved

has a sufficient nexus to protection of the national se.

curity to justify the surveillance” (td. at 22).

The court may thus look: only to whether, national se-

curity, is somehow involv ed and under the least demanding

‘ Of standards. It may not even consider whether. the par-

ticular person whose priv acy is affected is entitled to be

frée from such privacy. Indeed, given the Gov -ernment’s

~ distrust. of judicial competence in this area, it is difficult

a see how. the courts can apply ev en so pose a standard

_ aamrery and capricious.” :

3. Cainglevattinal’ supervision is esol limited.

Nek is Congress given any greater role. There is no

provision for any formal ov ersight and the Government

has done nothing to facilitate any kind of systematic con-

gressional ov ersight of the “reasonableness” of such sur-

-veillance. ee oe |

D. The Range ‘of Possible Targets of Such Siviliies Is

Virtually Unlimited, and the Amount of Such Surveillance |

- Far Exceeds That Conceded in the Government’s Brief.

lL. The range of possible tirgets of such ——

is virtually unlimited.

. Not only does the Gov ernment claim the right’ a ‘be feet |

from virtually all judicial limitations, but it acknowledges”

no limitation on who may he eav esdropped: upon, |

In the. first place, we are: given little. or no indication of

what kinds‘of persons or organizations may be the targets _

of ‘such eavesdropping. The affidavit in this case, for

example, says only that the surveillance 3 is

“being employed to gather ‘intelligence oraiion .

- deemed necessary to protect the nation from attempts

of domestic organizations to attack and- stibvert ‘the

' existing structure of the Government” (Govt. Br. a

Interestingly sien there i is no ‘reference to violence here, . °

‘despite the many casual references in the Gov ernment’ S

brief to “sabotage,” , id. at 18 “actual. acts of* insurrection”

(id. at 15), “protection of the fabric of society itself”: (id.

at 14), —— to, ov erthrow, (id. at. ss and bombings 3 as

(id. at 18)..

The . Government ‘Sehied* on the ‘language a §2511(3) :

\ ould “overthrow. the govern-

which refers to those who

~ ° .

ment by force or other unlawf means or against any other

clear and present danger to th

- government. ‘i ‘ aa Sie,

Suck a class is frighteningly indefinite. By its own. terms,

7 it goes beyond those who would engage in unlawful activ ity

~ and includes all ‘who ssa major changes in the “structure ~

structure ¢ or existence. of

- “

Pf «

: |

. . of the government” whether from the right, left or

_ center. Taken literally, this can include those who would |

_ change the Electoral College system or would reverse thes.

Supreme Court’s apportionment or segregation decisions

As: Mr. Justice White said of a: similarly broad Dtute in

Baggett v. Bujlitt, 377 @S. 360,873 (1964): ~~ .° -

“The State labels as wholly fanciful the suggested

_possiblé coverage.-of the two: oaths. It may well: be

correct, but the contention only emphasizes the diff.

- culties with the two, statutes ;- for if the oaths do not |

reach some or any of the’ behavior suggested, which

specific “ conduct’ do the oaths cover? Where does .

fanciful. possibility end and intended coverage begin?

“It will not do. to say that a prosecutor’s sensé of fair-

ness and the Constitution would. prevent a successful

perjury prosecution for some of the activities seem. -

ingly embraced within the sweeping statutory. defini-

tions. :.. Well-intended prosecutors and jidicial safe.

guards do not neutralize the vice of a vague lay.”

(Emphasis added.)

_ The breadth of the category has been noted by one of the -

leading experts in ‘this field, who was the chief architect of

‘18 U.S.C. §2500 et seq.,.G. Robert Blakey; Chief Counsel,

_. Subcommittee on Criminal -Laws and Procedures, in a

Memorandum to Senator John McClellan, reprinted in ‘Ul7 |

Cong. Rec. $6479 (May 10, 1971 daily ed.). Under the head.

‘ing “Definitions of Key:Terms,” he included inter alia, “La.

Cosa Nostra,” and added that such surveillance is “some

_ times used to determine the influence of extremist: groups in

i other legitimate organizations (civil rights or peace).” The

prime example of the latter is of course the wiretapping of

’

| ? ea

Luther ‘Kine, . ¥. -which was apparently sine?

‘ae feat of Commimnist influence ’on Dr. King. See ,

Navasky, Kennedy Justice 135-55 ipo ig

likelihood of such widespread Surveillanée has been

- confirmed\many times. Martin Luther King, Jr. and Elijah

Muhammed ’are but two of:those whom the Government.has _

. admitted spying upon under this- power. There are wide- -

. spread revelations of military spying an those who have. |

attended anti-war ’rallies, demonstrations, and the like,

some of which was “at the request of the ‘Justice Depart- .

ment,” according to. Assistant Secretary of Defense Daniel

Z. Henkin on national’ television. Buffalo: Evening News,

December 1, 1970, p. 1, col. 1. Reports of outrageous Syping

- of people not, liked. by= ‘the F.B.I. and/or‘ the . Attorney -

General i in earlier years. are numerous. See Theoharis and ..

Meyer, The “National Security” Justification for Electronic «

Eavesdropping: An Elusive Exception, 14 Wayne L. Rey. -

749, 760-61 (1968) (Mrs? Roosevelt, John L. Lewis, Bureau °

| of Standards Director Edward coat, ete. ). :

. Because of the secrecy of these . surveillances, it is

impossible to~ know. just how far into ordinary political

activity they extend—the revelations -with respect: -to-

M Luther King, Jr. and of military spying in Illinois -

and elsewhere aré hardly reassuring. But the vagueness) -

of this category permits this i 1984-type' ‘SPying. on a _

range of people. |

Even if the kinds of persons or- organizations covered

by the Government’s coriception of threats to..“national

security” were: clearer, the number of totally innocent :

people that would be. overheard would still be huge, This

surveillance i is egedly for. intelligence purposes, not for’

investigation of specific criminal conduct. “According to @.

: .

» os, *

—

= 5 ia

oo nations, the. Goverment stresses that:

‘monitor both er % ang eek craig! associates “of

suspected persons or organi ations, and criminal: and hon.

eriminal ace “ities. . In his memoran to’ Senator Me.

PP)

: Clellan,’ Mr. lakey hoted : Sale eS oa

“Note: ‘too, that since. the emphasis i is on the prevep-,

tion of harmful activity rather than the punishment of.

thoge who have. already caused harm, ‘police action in.

‘these: areas tends to cover more. ‘people for longer

: ‘ periods: of’ time under less précise standards’ than con-. .

“ventional eriminal - investigation.” 117 Cong. Ree:

.. $6477 (May 10, 1971 daily ed.), See H. Schwartz, The

Legitimation | of - Electronic Eav esdropping: The

Politics of “Law and Order,” or Mich. L. Rev. 455, :

"4685 1- (1969).

It is viteito in ‘seeomnition of this, that the Gov ernment

“strongly opposes any effort by .the courts. to reviet the

Attorney General’s determination that “the . ‘particular-

organization, ‘person or ev ent has a. sufficient next ‘to.

' protection of the’ national security to justify the eurvell-

lance” oer Br.. #2).

2. The exteni of national security surveillance is greater than

“phat conceded by the. Government's Ow: SS.

In order to support its contention. that the att rT

The Attorney . General personall? anthatie

__ national security: suTV eillance, and does so onl\ when

he concludes that the. information to’ be® obtained

oe"

+ 7@

shares is essential to the "Protentionget the. govetn-

ment. One result of this careful and personal réview ~

“by the. Attorney General is that the number of such -

surveillances is closely limited ; indeed, in recent years |

it has significantly declined.. The number of. warrant-

Jess. “national security” telephone surveillances - oper-

— ated ‘by the Federal - ‘Bureau of Inv estigation in the |

past fen years has decreased : 1960-78; 1961-90; 1962-- —

"$43 1963-953 1964-64; 1965-44; 1966-32; 1967-38; 1968-__

$3; 1969-49;.1970-36. See, e.g., Hearings before.a Sub- -

3 ‘committee of the Committee on Appropriations of.the Sonne

: House of Representatives, 87th. Cong., 2d Sess. 345 . e Kae

= (January 22, 1962) ; ; Hearings before a Subcommittee

- of the Committee on Appropriations of. the House of .

Representativ es, 88th Cong., Ist Sess, 491 (January ae

29" 1963); Hearings .before a Subcommittee: of ‘the ae

Committee. on Appropriations of the. "Housé of Repre- -

"sentatives, 91st Cong... 2d Sess. 754 Slats ¥ A

Lx 1970). 7 . .

; “These statinties are both inaceurate oad misleading nn .

at least three respects. icra nae ‘=

od. These figures seem to state the total number of such

surveillances for the year. In fact, they do not, but only the

. total number of telephone surveillarices in operation as of a ,

particular ‘date, generally the date of FBI Director J. |

Edgar “Hoov -er’s. testimony. ‘ The ‘point was, made very:

clearly in the,Government’s brief in the court below where

it described these same figures as “the steadily decreasing

ynumber of warrantless ‘national ‘security’ telephone sur-

veillances operated: by the Federal Bureau of Investigation.

at the time of the Congressional hearings or appropria-

. .

ee in éagh of the paint ‘ten years. . 2 ‘Supp’ Memoran. :

ae dum for: Petitipner, p. 10; n. 3 at p p. w. ‘The- — totals

wen, appear in subpara. 3 below,’ _ - wee

San soo Thee denies apply “only” to \etesiaaae sarveillidi !

which the Government here also seeks, to have authorized.

Very few figures for the microphone surveillances have

oA been made available, but at Some periods, ey: were not.

¢.- much fewer than telephone’ taps. For example, on May %,.

‘oe 1961; Assistant Attorney General Herbert J. Miller, Jr.

.” wrote. Senator Ervin that on February 8, 1960. there were

_ 78 telephone taps in operation’ and that “The Federal

Bureau of Investigation has 67 of. these ‘ [electronic listen-

oe ing]. devices in operation,” apparently on May 25,. 1971, .

-. ‘the date of the: letter. The letter is reprjated i in ~~

Kennedy, Justice 88 (1971)..

——_—e——

? - The actual earn of taps wail bugs for recent years, _

6 es ea une-December 1968, calendar year 1969 and calendar

year 1970 and the ‘highest number-in-operation at. any one_

_ time: during those years appears in correspondence between

_ Senator Edwatd . M. Kennedy and the Department: of

_ Justices released on December 17, 1971 and reprinted in

' Appendix B hereto. That oe contains the

following information: . 4

Be | “June 19 to December 31, 1968. ; pede

ee Telephone Surveillances ea ieee

In operation less than ¢ one week —

-In operation 1 week to 1 month °

In operation 1 to 6. months

In operation more than 6 months —

rhe) ate eel er die.

Microphone Surveillances

In operation less than one week _

- In operation 1 weekto- t month |

Ih operation 1 to 6 months

In operation more than 6 months _

yt he

Tora —

| Z

Calendar Year 1969 *. .

‘Telephone Surveillances

ee In operation léss. than ¢ one. week. Ss

In operation 1 ‘week to 1° month

In operation 1 to 6 months

In: operation more. than 6 months:

oS o.

Torar. - :

Microphene Surveillances ;

In opetation ‘es than one week

__In operation 1 week to 1 month

In operation 1 to 6 months _

‘In operation more than 6 months

Tora.

‘ Calendar Y ear 1970 - one

> Telephone Surveillances + \

In operation less. thar one week

In operation 1 week to, 1. month

In operation 1 to 6 months

< In operation more than 6 months

Toran

ne :

4 6.

aoe

oe :

°o. .

81. -

13-

se eee. Microphone Survedlances : z Coad “ gie

Pee *

, hh ‘operation, less than one week ae

los ” In operation 1 week to 1 month "

mie bee s _ LP operation 1 to 6 months | : Sa

| : + In operation more than 6. months ee ee

is eee eget The ennual: totals set forth above: ‘can be » shindeades

tee ee that they reflect the total installations authorized .

~ \ °°. | or in plage during the peri@ds described. The total

\.*.* ‘maximiim number of surveillanceg in operation at, any

| bes one time during ths periods described are as follows: |

3 : June 19 to December 31, 1968

_ Telephone’Survéillances j Ee r 5

: Microphone aspera ae fe.

Cae. Year 1969. : 7 -

‘Telephone Surveillances

ee Microp eq

7 Calendar Y ear 1970 f : :

Télephon® Surveillances Se: . 56

——— Surveillances o shat ts a B

Letter + Gf March 1, 197 1 aia Asst: Atty. Genl. Robert C

Mardian. to Senator. Edward M. Kennedy. pens.

a Assistant Attorney General Mardian refused to break

. . ‘these down into foreign and domestic surveillances. Letter

. of April 23, 1971, in Appendix hereto. It should be noted -

that in 1969 and 1970, the Attorney, General had installed’

— 30: court-ordered electronic surveillances in 1969 and

in 1970. See 1969 and 1970 Reports of the Adminis

an paar sk Me-Gnited States Courts ‘on court-ordered

electronic surveillances. ‘Obviously, there has been a gre i

at of = national security aitienieg and the ae

_ privacy of vast numbers of people has been invaded.

€

re This Exemption From Cinatiinstonal Sakceees, - -

- Granted, There Is'No Rational Basis for Not Granting a

- ‘Similar Exemption From. Other: Constitutional Pietoctions. ? ee

arent s argument for dispensing with § conven- | o

tional constitutional protections deals only with electronic”

_ eavesdropping. But can such an exemption be limited to

’. deetronic surveillanee or investigation? How ‘can it not,

logically extend to other forms of. obtaining intelligence at

such as entering and searching a person’s or group’s home, —

‘office or desk without ‘a judicial: warrant? See Gouled v...-

United States, 255'U.S. 298 (1921); Coolidge v. New Hamp-

_ shire, 403 U.S. 443 (1971). Why does it not also include

. detention for investigation ‘of groups, or individuals? . de- ee

tention or arrest in order to remove a person or organi- .

zation from circulation? See K. orematsu vy. United- States,

. BUS. . 214 (1944), Or, taking ‘property. forcibly from’ a

~“qangerous” person or group! .See Youngstown Sheet and:

Tube Co. v. Sawyer, 343 U.S. 579 (1952). . And in all these-

* eases, without: permitting judicial review of whether the

“particular organization, person or event has a sufficient

nexus to. protection of the national secutity. to justify the”

official action. By what rationale can these be disti

from the activities defen

——-, ee | : . pe

“eo eae ele Se ee yee

These then constitute the true dimensions of the’ Gov-

ernment’s position—a demand for a vast, lengthy iinsuper-

vised and unchecked i invasion. of the privacy (and implicitly,

- other rights) of many, many people having only the re-

motest link with anything in any way criminal _< or. even.

wrong. .

* “

. ee

° .

’

: ae Court found ‘ “anaicceptable -search based solely on an.

_ Fourth and First Amendmenté. yg roe

se requirement Speaks directly ‘to the issue at hand.—in

Be “agent” « of | the State—the Attorney General. wigs” 403 US.

f | 4Govt. Br. 19-28). And in rejecting the other justifications

ne _ ‘searches ‘conduetec outside the judicial process, with

“the ee aasaiad is, inconsistent with the 4

A. The Government’ Demand Is Inconsistent

yes the Foust Amendment. oN

The. most recent ‘utterarice: of this ‘Coat | on the warrant

Coolidge ¥. New Hampshire, 403: ILS. 443-1971 1), this

e chief ‘governmental, enforcement’

at 450. The Court squarely rejected. a claim that the At

* torney Genéral “did in fact act-as a ‘neutral and detached

- ‘magistrate,’ ” tbid., a claim similar to. that presented here

propbsed by ‘the State of New Hampshire for dispensing

with a warrant,: Mr. Justice Stewart said for the Court,

in words directly <a to this case:

* “the ‘most. tasks cen stitutional rule in this : area is that

_ Out prier appréval by judge or magistrate, ‘are per se

ey unrea®nable- under the Fourth Amendment subject

: only. to a few specifically ‘established and well-deline-

. ated ‘exceptions.’ The exceptions are ‘jealously and

bs carefully drawn,’ and there must be ‘a showing br

those who seek exemption’. : . that the exigencies ‘of

_thé situation made that oes imperative.’ ‘(The

burden is on those seeking the exemption -to show the

need for it.’ In times .of unrest, whether caused by.

crime. or racial conflict or r fear’ of. internal subversion;

a”

i constitutional concepts. In times-n € altogether tinlike a ol. iS

our-own: they won—by_ iT and constitutional means

in England, and-b r revolution on’ this eontinent—a

= right _of-pérsonal security against arbitrary intrusions -

BS '-—~by official: power. If times. have changed, reducing.” |

everyman’s scope to do as he pleases in an urban and

: industrial world, the changes have made the values | ae

served by the Fourth Amendment more, not less, im. -

mie: portant.” 403, U.S. at 454.55" rae —* em-

— phasis added)». 2 Secs Re

The Government merely cites Coolzdge once in passing,

Govt. Br. 19 n. 8, and instead reliés on two lines of au--

thority: for its claim that it is. éxempt from ‘the warrant =

“and other Fourth Amendment réquirements: (1) in part, :

the: Gov ernment relies on the Court’s reservation of the |

national Security situation and on Mr. Justice White’s

concurrence in. Katz v. United States, 389 U.S. 347; 358 _

nL 23, and 363-64 (1967), a case that reaffirmed the. warrant

requirement in other’ respects; (2) in part, the Government My

relies on cases in ‘other situations such as border searches, a

; entry into- government buildings, welfare, and immigration

(Govt. Br... 12), as well as certain other law enforcement

situations. (Id. at 12 n. 3.) Neither offers _ ® Government

much support. Ae

ee The reservation of the queition of warrantless surveil-

lance by Mr. Jtfstice Stewart in his ‘Katz opinion for the

Court, 389 U.S. at 358 n. 23, and his goncurrence in Gior-

- v. Otte States, 394 U.S. 310, SIRES. ities which

ae,

ft ae os seas 4 et ae ENS ae

% Hi 4 : 2% es 4 98

AFG 4 if Shs

es ie - we re 2 +» we

<% Dele mm - 2 3 °\

es phe oe ae Z eoo8 : (g~ 4

fe eae Pe es RENE ps : taf

. ; 3 6 >

: tosh to Mr. ‘Justice White's concurrence in K atz andi in

, i : | Douglas J. as jeurring. -in. Kate 389, U. S. at 359-60. 6

“ge. sie ‘The listing ionsbetween: the two areas va be disenssed.

grat pp. 32-33 below. © |

Cases from. other situations offer the: Gov a little

‘more... A customs search is an historically sanctioned ex.

ee ception, that has increasingly come under fire. See’ get.

generally Comment, Border’ Searches and: ‘the Fourth |

Amendment,.77 Yale L.J. 1007 (1967). Searches of per...

~ gons ‘occasionally entering gov ernment buildings area fat”

' -@ry. from intensive and lengthy. eléctronic ‘eay esdropping

of someone in his. own home or office. Welfare searches.

; without:a. warrant were justified i in Wyman vy. James, 400°

a, “U.S. 309, 318-24 (1970) on. the ground that the ‘community

‘\ had a right to know whether the beneficiaries of’ publie

funds were. spending. those funds i in accordance with com -

‘munity intentions, especially where children are inv olved.

_ In Camara v. Municipal Court, 387 U.S. 523 (1967), a wal-

ei . Tant from a xeutral magistrate was - insisted upon. :> And

inimigration matters have always been siti generis, since:

aliens have. always had -fewer rights than citizens. See

_ opinion below; App. 22-23. It should also be noted thi

- in Abel v. United States, 362 U.S. 217 (1960), the issue of

‘ whether a, warrant ‘Was necessary and what kind, was eI

plicitly réserved by | the court. See 362 U. S. at 230, 236.

‘As to other types of warraniless searches authoriie

by Chambers Vv. Movonty, 399 U.S. 342. pie ne Schmerbet

¥ «Colfornia, 384 v. Ss. 157: (1966) ; erty: Oni, 392 eu s.

- (1968),;, Warden v.. Hayden, 387, U.S. "294 (1967 )—all

* these” involve special circumstances based on ‘speed, €.g-5 :

‘Rhmerber, Chambers, Warden, or ‘immediate self protec- s

‘tion. Compare Terry with Sibron v. New Fork; 3922 US.

4¢ (1968).,(no threat and therefore: no right to frisk).

No such exigency is present here. See opinion bqlow, “App...

B. Moreover, iif each instance, jitdicial serutiny after the’ |

fact was always av -ailable. ‘Here, however, ‘because of the 1 y

_Seerecy of the search and the fact that it will rarely come Dette:

“to light, no “judicial or other scrutiny is ev er likely. :

Hy The. Distinction “Between Siervililmee for larctlignee a a

Surveillance for Criminal Prosecution Is Immaterial.

The Sereraiseat makes much of” a purported distinction - .

“between searches for intelligence and.thos¢ for law en- ©

’ foreement and prosecution.” Indéed, its whole argument, fo

depends en that distinction (Govt. Br. 16). But nowhere |

-in the Constitution | or in case, law is there any. jnstifcation _

for such a ‘distin¢tion. Totten y. United States, 92 US: 105, .

106 (1875) dealt with the powers of. the Confinander‘in. 3

Chief‘in wartime to “employ sécret agents, a far ery from

~ the President’s power in peacetime to. encroach “upon the

most fundamental rights of a free. society. Indeed, im many.

of these cases, intelligence and. prosecution. merge and ‘the

- only point of the distinction’ is that noted in the oral .

argument in United States Vv. Donghi, Cr. 1970-81 (W.D.

: N.Y.) petition for mandamus pending: when’ the Govern- :

-ment can meet the probable cause ‘requirement, it gets a.

warrant, and when it cannot; it relies on the so-called intel-

ligence-gathering power. See Govt. Br. 23, urging. Tejec-

mn. of f probeble cause: standard for sa ee

Ladin eavdeiionss for intelligence purposes is “even

‘- more destructive of the values of a free society. than sur

veillartre. for. inal prosecution. Intelligence surveillance.

io2 iS am explicit fishing expedition ofthe 1984 variety. It

en intrudes “upon those suspected of no wrongdoing whatso. -

‘ever, see H. Schwartz, 67 Mich. L. Rev. at 468-71, and

_ Spreads an aura of Big Brotherism that no free society ¢ can .

*. tolerate. . When joined with a demand for the power to

engage in such intelligence surveillance without any, sig.

‘nificant outside eheck, the clash with . individual liberty -

* becomes intolerable. a . .

‘ wv : . . * ‘SS ,

ea The ‘Wihienisaaate ‘Demand Is- Rlccidieiice waa

F reedom ‘of. Speec and Astosiation Protected

‘by the First Pever tes

“ON ot enly does the Bownrnasent assign toa: ‘slight a iveigh

to “the invasion which the search entails” insofar as Fourth

- Amendment values are ‘concerned, but it completely omits

any reference to the First Amendment ‘values that are

. threatened by such surveillance. As J udge. Edwards noted

for the court below, App. 36-37, and as Mr. Justice Brennan |

deiionstrated in -Mardchs v. Search Warrant, 367 U.S. 71,

“724-29 (1961), the historical link between’ “arbitrary searches

and free speech is a close dhe. Since as early as 1557, not

long after the invention of: printing, governments have

continually sought to Spy upon and suppress “dangerous”

speech and associations and to ‘search out “dangerous in-

dividuals and groups.”: Entick v. Carrington, 19 How. St

Tr. 1029, “one of the landmarks of English liberty,” 367

‘U.S. at 728, is one of the most significant incidents in this.

| history, and it has many parallels in colonial history, where’

the asain -writs of assistance gave birth to the Fourth:

)

See

‘States, 116 U.S, 616; 627-30: 2.

= “The principles laid down iri this opinion~.. . apply to

- all invasioris on: the.part of the Government and its.

eniployes the’ sanctities.of a man’s home and the.

privacies. of life. It is not the breaking of his doors,

and the rummiaging of his drawers, that constitutes

. Amendigent. Of Entick, the Court said in Boyd v. United ; - “

> the essence of the offence; but it is the invasion of >

his indefeasible right of personal security, personal

liberty and_ private property, where that right has -

' never been forfeited by his conviction. of some public

offence. . ..” 116 U.S. 627-30. uh epee

| Yore tecently; in Stanford v. Texas, 379 US. 476, 485°

(1965), the Court ruled that where First Amendment con-

siderations were involved, the Fourth Amendment require-~

‘nents are more stringent. .- .. fo da

: Tnvoluntary disclosure ‘of membership lists) and other .

associational information can .also be fatal’ to the equally .

important and related. right of association, as the Supreme _ -

Court pointed: out in NAACP. v. Alabama, 397. U.S. 449

‘Electronic eavesdropping, particularly of ‘the kind

sought to be here legitimated, would seriously interfere

with both-speech and association, as-the Court below.found,

App. 36-37, and far more than any conventional search ”

or disclosure. Such electronic surveillance usually operates —

“ to-chill free discourse and association by depying the sense

of confidentiality and security that is absolutely indispen-

“sable to such discourse and association—how many will —

- divulge a confidencé critical of those in power if they know

(

‘S : | , 28 |

they may be overheard? As. Mr. Justice Brennan said jn

Lopez, the only way to guard privacy is “to. keep. one’s

; mouth shut ». ui 21 occasions” 373 U. S. at 450. .

| Moreove: _ ule very publicity: given to this policy; as er

- as the disclosure of specific applications thereof. to dis.

senters, will chill free discourse and associat ion even more?

ate Although these disclosures are of. course necessary to a

- » Free society and a fair trial, the many. public statements by

the Government are not. See, e.g., U.S. To Fighten Sur.

_ veillance of Radicals, N.Y. Times, April 12, 1970, 41, p. 1,

col. 2; F.B.I. Seeks Panther Data, N.Y. Times, Dee. 14

3 1969, “SL, p. 1, col. 2. The many revelations as to who has

been gavesdropped ‘upon, some Of. which ‘were discussed 7

above, the broad scope of wha i is subject to such eaves.

_° dropping under the Government’s claim, the enormon

= amount of eav. esdropping that has gone on despite denials

thereof, see, ¢.g., Hearings .Before the Senate. Subcom.

_ mittee on Administrative Practices. and © ‘Proce Sdu Tes on

Invasions of Privacy by Governmental Agencies (1965-66);

“see generally, H. Schwartz, The Legitimation of Electronic .

Eavesdropping: ‘ The Politics: of “Law and: Ordeg” 67

Mich. L: Rev. 455, 477-80 (1969), and-the fact that taps ang

bugs are concededly installed on:non-criminal associates

‘and on non-criminal activities, see H. Schwartz, id. at 469

TR. 65, 470 N. 68 (testimony of F. B.I. agents)— all these

factors combine to make it véry dangerous indeed to risk

associating with or even speaking . on: the phone or in a

home or office to someone who may be. considered “danger

* See the awareness of tKis 3 in an F. B.I. een erm of. Septal

16, 1970, reproduced in Donner, Spying for the F.B.I., New York

a Review of Books, April 22, 1971, p. 31, and the intent to capitalize

thereon to discourage free speech and association.

us” * by” the Attorney General. As Mr. J entinn Brandeis

a in Olmstead v. United States, 277 U.S. 438,.478 (1928),

“writs of assistance: -and general. warrants are but puny

-jnstruments of tyranny and oppression * when. compared

with wire-tapping." 7

Ill.

There is no suaifbolhion for granting the: aukerais |

General such vast unchecked powers over the lives and —

3 liberties of the Aneties people. |

A The Biccbiniaets * Argument Here Is Actually the Same —

- Argument for Inherent Powers ‘Presented and ‘Rejected

' Below; the President’s Power Over rie ts Affairs Offers -

No Support for Its Claim. Baie -

Although the Government seeks to cast its argument in 7

_sraditional Fourth Amendment language, in the last analy-.»—

- sis its argument is really a disguised version of its argu-.

ment for inherent. powers pressed so vigorously ‘t and exten-

sively below. See Govt. Br. 15-18, 31-33. Sinte the Govern-

ment has apparently chosen to abandon this claim, there

would ordinarily. be no need to do more than to point to

the thorough demolition of such an argument: by dl the court

below. App. 19-26. , -

The Government nevertheless draws on such an argument .

here in relying on the f eign: affairs power to justify the .

surveillance power asserted here (Govt. Br. 29-34). Urg-

ing that ‘no. distinction. can be drawn between “domestic”

and “foreign”. surveillance, the Government: cites the con-

‘ }

ad a

*For the views of constitutional law experts on the power ~ |

claimed here, see Appendix C to this brief.

. tents of a nila exhibit filed i in Ferguson v. U nded =

. No. 71-239. Govt. Br. 30 n, 13. :

In the first place, ‘it is difficult to argue tlie signifies

of records that respondents and Amici have never been ‘al.

lowed to see. The Goxernment’s character ‘ization of such

calls is obviously impossible for respon s and Amici

to dispute, as is the significance - aneenes -by the Govern. |

ment to such characterization.

_ Secondly, and without passing on enitie there is an ex.

' eeption.for such surveillance for foreign-rélated activities,

the difference between the President’s. powers in foreign

affairs ‘and in domestie matters is clear and. long-estab-

lished, as, Mr. Justice Jackson stressed in. Youngstown

Sheet dnd Tube Co. v. Sawyer, 343.U,S. 579, 643-44, 646

_ (1952). There he observed in passing that U: nited States

_. Vv. Curtiss-Wright Corp., 299 U.S. 304 “recognized internal

“and external affairs as different,” where inherent execu- -

tive. power is claimed: 635-36 n. 2. The same point is

‘made quite decisively in, Chicago & Southern Air Lines, Inc.

_‘s v. Waterman, 333 U.S. 103.(1948), where the Court stressed.

‘that “the very nature: of executive decisioris as to foreign

policy is. political, not judicial,” 333 U.S. at 111 (emphasis

added). Indeed, the Court in Waterman expressly dis-

tinguished the President’s . limited power over domestic

air routes from his plenary powers over foreign routes or.

-. carriers, for the very reasons set out above. I[d. at —

Neither time nor space permits detailing the irrelevs ance

_ of such of the many decisions cited by the Government. .

This. was carefully done by Judge Edwards below at App.

21-22.. See also P. Kauper, The Steel Seizure Case: Con-

gress and the Supreme Court, 51 Mich. L. Rev. 141, 149-50

(1952).

i. pias : .

Other courts have come to the same conclusion: we can-

not treat our own people like foreign enemies. See, e-£-5"—

United States v. Smith, 321 F.. Supp. 424 (C.D. Calif.

- 1971), petition for cert. pending. . .

' As Judge Keith: said in the district court decision here-

im: pie oane Poe, ,

“An idea which seems to permeate much. of the Gov-.

ernment’s argument is that a dissident domestic. or-

ganization 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. constitutional privileges dnd immunities

- that are inherent in United States citizenship. . It is

to be remembered that in our democracy all men are-

- to receive equal justice regardless of ‘their political,

government eannot be given the power ‘or the oppor-

tuhity to investigate and prosecute criminal violations

under two different standards simply because certain

with our present form of government.

= “In this turbulent time of unrest, ‘it is. often: dif-

ficult for the established and contented members of our

society to tolerate, much less try to understand, the

contemporary challenges to our existing form of gov-

‘ernment. If democracy as we know it, and as our fore-.

~ fathers established it, is to stand, then ‘attempts of

domestic organizations to attack and subvert the exist- _

‘ing structure of the Government’ (see affidavit: of At- oa

torney. General), cannot “be, in and of themselves, a

7 crime. Such attempts become criminal only’ where it °

- ‘beliefs or persuasions. The executive branch of our ———

accused persons espouse Views which are inconsistent

ean be shown that activity was/is carried on through |

unlawful means, such as the invasion of the rights of

others by use of force or violence.” APP. Te: “% See

—¢

‘See also Weikion. si conarsin Y a, 343 Us.

at 649-54.

Moreover, thé distinction etwenia foreign and. ‘dana

surveillance has been drawn steadily .by the Government

‘itself i in its-own affidavits. In the case at bar as well as

‘in the Chicago conspiracy case, U’ nited States v. Dellinger,

et al., Grim. 69- 18, N.D. Il, decided Feb. 20, 1970, for ex:

ample, the Attorney General’s affidavits. expressly referred.

‘to “domestic security.” In the J ewish Defense. League case, °

oa United States Vv. Bieber, Crim: 71-479 (E.D.N-Y. ), and in.

United States v. Clay, 430 F.2d 165 (5th Cir. 197Q), rev'd -

on another issue, 403 U.S, 698 (1971), thé affidavits spoke ”

_ of “foreign” problems. And as the Gov ernment implicitly

concedes, §2511(3) seems to draw. such j a distinction. Why vs

_ then: is.it sq unreal? . : 3

‘The distinction was apparently easy enough to draw for

‘the distinguished and experienced. lawyers who constituted

the members of the American Bar Association Minimum —

Gerentiands: Committee on Electronic Surveillance and the

ABA House of Delegates. The ABA Minimum’ Standards |

for Electronic Surveillance adopted by that body February

1971 do not include: the power sought by the Government

herein to eavesdrop on domestic security, despite the ‘ex-

plicit intent to.track the federal statute very closely. See

Introduction to Standards, p. 1. The right to.dispense with

. judicial authorization approved by these standards in na-

tional security eases relates solely to foreign matters, see

§3.1, and even this authority was sharply challenged. See

§. CrL 2371-72 a oa

“oe

> R

« 33

In fini debate Mr. _Fisties Poweli; ‘then. a priv ate citi.

en ad. a member- of the Special. Committee on Standards

Po an a

mended these’ Standards, expressly ‘etal that. the exemp-

tion from antecedent judicial scrutiny does not apply to

domestic — but ealy ‘to foreign attack. 8 —

2372.

This deliberate omission of the power. to ciiediines on

domestic individuals and groups’ indicates that the ABA .

House of Delegates believes that the President should t

. have such authority: ‘This omission is particularly . signif- >

icant in light of the’relatively sympathetic attitude toward

governmental eavesdropping reflected in the Standards and

. Commentary; both in the final version. and in | the Tentative

Draft of June, 1968.

There are some Faiviciental bani for the distinction. A

‘ anaes individuals and groups owe this nation loyalty

and allegiance, i in return for which they. are entitled to the

full measure -of liberty that constituted the raison. d’étre

for, this nation’ s creation. A foreign group or national. ~~

neither. owes this nation: that allegiance, nor are. they

usually given the full benefit of the nation’s : bounty. |

“Moreover, much of the eavesdropping in the cetera.

tional area probably has little to do with threats. to this

Ration, but is designed more to provide data for informal

| policymaking than to counter dangerous attack.

| Indeed, even for foreign enemies, wé have statutes and

due process, and any electronic eavesdropping for such

purposes must comply with the detailed structure of 18°

US.C. §2500: See 18 U.S.C. §2511(2). ‘Only where we deal ~

with the non-criminal array of —_— _—. activities—

te ee

_ and inevitably, most foasign policy activities do not involve

criminal implications—can even a colorable case be made

_ for some kind of intelligence-oriented surveillance.’ Where

domestic activities involving potential law-breaking are

“% concerned, the Constitution must be observed.

B. There Is Ne Statutory hiainsing for This Pose:

In the first place, as the court below concluded, App.

28-33, Congress gave no statutory authority to exercise:

stich surveillance, even if it constitutionally could do 80.

Section 2511 (3) of the Act merely reads: pee

“N or shall anything contained in. this chapter a deemed

_ to limit the’ constitutional power. of the President to

take such measures’ as he deems necessary ‘to protect

' tie. United States against athe overthrow of the Gov-

ernment by force’ or other unlawful means or against.

any other clear and present danger to the — |

“or existence of the Government. Bb 3

‘The Senate Report at. one- scilél per a to this power as if

it encompassed. only foreign- related activities, see S. Rep.

‘No. 1097, 90th Cong, 2d Sess. 69 (1968), although the de-

tailed analysis of the report is more ambiguops. Id. at 4.

See discussion! at pp. 36-37 below. But on the floor of the

Senate, it was made clear in response to Senator Hart ‘that

| no extraordinary additional powers were given or even.

acknowledged: | : | ;

“Mr. Holland .. . We are i clas mii

> any power upon the President. We are simply saying

that nothing herein shall limit such powers as the

President has under.the Constitutien. If he does it

have the power to do any specific thing, we need not bk

ie concerned. We certainly do not grant him*a thing.

There is nothing affirmative in this statement.” 118

- €ong. Ree. 14751 (May 23, 1968) (emphasis added),

And Senator Hart thereupon concluded : is

_ “A few days. ago I. wondered whether we thought.that .

we nonetheless could.do something about the Constitu-

tion. However, we are-agreed that this language should |

_ not be regarded as intending to grant any authority,

~ including authority to put a bug on, that the President _

‘does not have now. ae ee ae

In addition, Mr. President, as I think our exchange --

_ Inakes clear, nothing in section 2511 (3) even attempts - |

_ to define the limits of the Ptesident’s national security _

- ‘powers under present law, which I have always found’

- extremely. vague? especially in domestic security

..* threats, as opposed to threats from ‘foreign powers.

bees recall, in the recent Katz*case, some of the Jus-

"tices of the Supreme Court doubted that the President |

_has any power at all under the Constitution to engage =

_ in tapping and bugging in national security cases with- _ o

out a court order. Section 2511(3) merely says that if

the President has such a power, then its exercise is in

' -o way affected by title III. As a result of this ex-.

‘change, Iam now sure no President thinks that just \

"because ‘some political movement .in this country 1s

_ giving him fits, he could read this:as an agreement from -

us that by his own motion, he could put a tap on.” .

‘(Emphasis added.) Ibid. * eee

QO.

More recently, Senator McClellan, perhaps the prime

Mover behind 18 U.S.C. §2500 et seq. expressed virtually

. Se 4 . 7 . ae ; , x fi

a -

. 86 aoe og

j ! Dee ee - Be

_~ the same position. In presenting, the repeet of the Admin.

\. istrative Office of the United States Courts on the. 1970

court-ordered electronic surveillances he declared. With re:

"spect to “the so-called national security or domestic se.

curity use of wiretaps or listening devices,” and = Pres.

dent's power thereon:. in :

“What the scope of di Président’s constitutional

‘powers is in this aréa is a question the Congress did

not reach in 1968, and which is, I. note, now in.the,

lower Federak courts winding its | ‘way up to the Sn.

- premie ‘Court. See United States v. Keith, No: 71-116 .

en US. Court. of Appéals for the-Sixth Circuit, decided

‘April 3, 1971.” ” 7 One Ree. 6477. (May 10, 1m

daily: ed. ‘) :

Moreover, ehedtighailt the 1950's, Congress refused this

_/power despite repeated requests. See Theoharis and Meyer, -

The National Security Justification for Electronic Eaves. |

4 dropping: An Elusite Exception, 14: Wayne L.- Rev. 749,

.764-65 (1968). When it did legislate, it did’ so in the | most *

limited way . possible: it said ‘simply that. whatever the

ae President’ 's powers were, they remained unaffected. ‘As the

. _-- Sixth Cireuit concluded, the language “is not the language

ee used for a grant of power. On the contrary, it was in our

ae - opinion clearly designed to place ‘Congress i in a completely

| _ neutral position in the very controversy with which ‘this

case is concerned. hip ‘App. 33. *

The Government seckSsupport. for its position in 8

rather cryptic ‘page from the Senate Committee. Réport,

_ &. Rep? No. 1097; 90th Cong.,“2d Sess. 94 AB): -X

~ Br. 28-29). That page reads :

# Gy “These’ provisions of the ‘proposed lanl ‘regard:

ing national ‘and internal security thus provide tha!

- ; = ae "wo

. - e -

the sabeiate of any wire or oral commitinication inter- _ -

. eepted by the authority of the ‘President. ‘may be ..

"e Teceived into evidence in any judicial trial or admin- es

"istrative hearing. * ** The only liniitations recognized -

on this use is that the interceptions be deémed rea-

‘sonable based on an’ ad hoc judgment taking into

consideration all of. the facts and cireum$Yances ° of |

‘the individual case, which is but the test of, the Con-

stitation. itself ( Carroll v. United States,” 267 LS: ae

“132°. (1925) ).° The possibility that a judicial’authori s-

tion for the interception eould or could not have been

‘obtained ‘under the proposed chapter would only be *

_ one faetor in such a’ judgment. No preference should

, ‘given to either alternative, since this would tend

to limit-the ¥ery power i this provision Tecognizes

; * not to be deemed disturbed.” _ :

‘Bat j in Barvoll the Court inbidted « on i paibiaids cause, 267

- US. at 155-56, a prerequisite which the Government ohana, '

- ously rejects here. Govt. Br. me

. And: at another’ point’ in the Senate Rent, when the

Committee sets out the justification a seope of the legis-,

ition, the Committee said: : ey,

Natrona esta A : aes oe

It is “obvious that whatever meats are necessary

should and must be taken to protect the nationa) ©

. security interest; Wiretapping and electronic sumpeil-

_ lance techniques are proper means fox the acquisition

of counterintelligence against the hostile action of for-—

eign powers. N othing j the proposed legislation seeks

a distarb the power P of the President to act in this y ‘

oT 8

> area, “Limitations that may be dcomosbyroper i in the ;

field of domestic affairs of a nation become artificial |

¢ . "When international relations and internal security are

at stake.” S. Rep. No. 1097, at 69 (emphasis added).

Surely, if Congress was going to approve sO major a de.

parture from established “constitutional principle in so sen-

sitive an area, it would have done so in. a clear and un., °

ambiguous manner. - en:

ao Presidential Directives Cannot and Do Not

_ Authorize This Power. . ‘

The, Government also seeks to bootstrap ite way by claim.

| ing that’ Presidential - directives authorize such a power

| E> (Memo 3-4). But as. Judge Ferguson pointed out in United

| States v. Smith, 321 F. Supp. 424 (C.D. Calif. 1971), peti-

_ tion for cert. ‘pending, No. 71-239, and as Judge Keith

_ ‘agreed in the district’ dourt decision herein, App. 70-71,

- this was to Wa narrowly circumseribed power, and in

. President Roosevelt’s. letter, was to be used only against

aliens, so far as possible. The Court. of. —, below did

» not even discuss this contention.

Moreoy: er, this kind of bnateliaubian screonal is dubi-

__.-- O18, to say the least, under the special facts of this case. The

history of the 34 years between the Communications Act -

_ Of 1934 and the Omnibus Crime Control Act of 1968 shows.

_ continuing controversy and impasse over the proper scope .

of electronic surveillance. See H. Schwartz, 67 Mich. L.

Rev. at 455, especially 455 n. 1; Theoharis ‘and Meyer, 14

Wayne L. Rev. at 755-68. Moreay er, this seems to be the

first time that the Government has openly proclaimed the .

right to use electronic surveillance on domestically ‘ ‘dan.

gerous” individuals and groups. To conclude that by not.

39.

‘ stopping it, Congress intended fo ratify the legitimacy of :

a policy about which few, if @py, knew, is to stretch the .

_ generally ‘dubious doctrine of ratification by silence, into

fantasy. : |

Finally, even if one takes the sdamiitiecs directives —

for all they are worth, they do not necessarily authorize

electronic: surveillanfe without judicial scrutiny. Sitice

there was no provision for such scrutiny: under §605 of

the Communications Att, none was possible. One thus can- .___

not know whether either President Roosevelt or his suc- |

cessors would have authorized such. exclusively executive — ‘

action, had there been an opportunity for judicially super-

‘vised eav esdropping, as eee now is under 18 U.S.C. §2500.

D. -Proctical Considerations of fare Confidentiality

,and Utility Do Not Justify —— the. Attorney General,

“This Power.

“Phe Government has not. only oe ee ay the value of -

the interests jeopardized by its demand, but it has grossly

overstated the considerations on the ‘other side. These

come down to the following:

‘1. The relevance of the President’s constitutional obli- :

‘gation to prptodpyhis nation ;

2. The comparative competence mi reliability of the

- executive and judicial branches;

-3. The practical benefits and detriments from granting

such a power to the Attorney General.

"marily of a factual nature,

. . +} *

e x

pp. 40 .

1. - The | president’s obligation to defend. the nation -

does not justify. wholesale invasion of individual

liberty by the Attorney General. .

Obviously, the president has the obligation to defend

the nation, and equally obviously, he must have the -power

to obtain information. But such an obligation and power .

are the barest beginning of analysis. It certainly does not

imply any thing about: what methods may be used, especially

those that cepflict with the most cherished values of our |

nation. Nor does it,imply anything about. giving that pdwer

completely to the nation’s chief prosecutor, whd is not

politically responsible. and who i is subject to all the short- |

comings classically described by Mr. Justice Jackson in

Johnson. v. United States, 333: U.S. 10, 13-14, ‘and most-

- recently noted in cnonages v. New Hampshire, 403 US.

at 449- dl.

2. The Attorney General is no more competent or

trustworthy than the courts in determining when

and whether electronic surveillance should be

permitted. 8

‘Much of the Government? s brief is devoted to the thesis |

thiit the Courts are not competent to evaluate the deter-

. Mination of when a particular surveillance should be under-

taken. In the court below, the Government justifred this _

on the ground that many iderations, some not pri- .

vant. In this Court, the

Government has virtually. andoyed that notion and re-

stricts itself to the related but. parate- considerations of

secrecy and competency. |

‘Ms to the first, the Government talks mysteriously of

_ material that cannot be disclosed to a court. Govt. Br. 24

~ , .

But this is iene of every criminal investigation and prosecu-

tion. No one requires: the Attorney General .to submit all

‘of-his facts, and he never does—after all, there are often

criminal prosecutions for the threats to security for which

the’ Attorney General seeks this authority, and somehow

‘these are instituted without disclosing everything. Indeed,

most federal court-ordered surveillance is .allegedly for |

investigating large- scale complex conspiracies involved in

organized crime, see S. Rep. No. 1097 at 70-74, and involve. |

much more than the “small number of single facts” asserted |

by the ‘Government to make up the typical search’ warrant

situation. Govt. Br. 24.

The Government argues ‘that : O° .

“Disclosure of the reasons for a surveillance or even

that it is to. be conducted could, hecause of the sensi-

tive naturé of the ‘information sought and of most

. surveillance targéts, make an effective surveillance im-

“ possible and thus prev ent-the government from obtain-.

ing vital information.” Govt. Br. 2425.

ies the Attorney: General not trust the federal judiciary

(which includes many former United States Attorneys) to

keep such .applications secret, as they are required to do

under 18 U.S.C. §2518(8)? After all,.it is not the courts

that have leaked stories about the wiretapping of Martin

~ Luther’ King,. see Navasky, KenNepy: Jus UsTIcE 35° (1971), —

or Joe Namath. *Moreover, there will be no “disclosure of

the reasons for a‘ surveillance or even that it is to be

conducted,” Govt. Br. 23, since the proceedings are in

‘camera until after criminal prosecution is started, or the

eavesdropping is otherwise completed. Also, other methods

to ensure confidentiality are available, such as an appli-

/ ASR

pommel yy 2 63 Yale L. J. at 809.

cation to the Chief Judge of the Court of sie ‘See

Opinion below, App. 38.

And the concern is really baseless. Over 15 years ago,

former Brooklyn District Attorney Edward Silver denied

: the need for any exemption, from judicial. scrutiny for fear

of ae — while Sanpete wiretapping au:

Subcommittee, No. 5 of the House Committes ' on the Judi.

ciary, 84th Cong., Ist Sess., 98°(1955). Judge Silver spoke

from tong experience since he has been obtaining eaves. .

dropping orders from New York judges for many years.

See also Donnelly, , Comments and Caveats About the

Wire Tapping Controversy, 63 Yale L. J. 799, 809 (1954). |

“3, «Centralisation” mall uniformity” are not sufficient to

_ outweigh the potential and actual harm from the widespread

electronic surveillance actually engaged in by the executive.

Most of the arguments for the Government’s position

prior to this series of.cases have focused on the need to

ensure “centralization” and ‘ ‘uniformity,” see Brownell,

The Public Security. and Wiretapping, 39 -Corn. L. Q. 195,

, 210-11 (1954); Rogers, ‘The Case for Wiretapping, 62 Yale

L. J. 792, 797-98 (1954). It is difficult to- believe that such

administrative considerations could possibly outweigh the

_ great threat to individual liberty presented by the power

sought by the Government. ©

Moreover, the uniformity: seems illusory. Attorneys

General shift in both: policy and attitude far more than,

do the courts, where there is life tenure. See generally _

- %

IV.

diderman v. United Seana 394 U.S. 165, is a consti- ;

tutional decision and should not be overruled.

A... Aldermen Should Not Be Overruled.

The reasoning of Mr. Justice White in “Alderman is SO

~-eogent that Amici will not argue this point, —

B. Alderman Is a Constitutional Decision.

The Government seeks to argue that Alderman is not a

constitutional decision, but merely “supervisory.” Govt.

Br. 40:. This contention is both simplistic and wrong, as

can be seen from both the language of Alderman and later

-. eases and an analy sis of “supervisory power” theory.

1. The Alderman language.

In the first place, the Court's: language in Alderman

‘makes it clear t i rights cannot be

adequately protected if the issue of relevancy is left to

the judge for an in camera determination. This language

jis very strong indeed, "{ the following excerpt shows:

“Adversary proceedings will not magically eliminate

all error, but they will substantially reduce its inci-

judgé, through lack of tinie or cunfi iarity with the

‘information contained in and ‘suggeste by. the ma-

_ terials, will be unable to provide the scrutiny which the

* Fourth Amendment’ cxclnexgiary rale demands. ” 394

am at 184.

Court did not think | it was ete with a mere procedural

dence by guarding against the. possi ility that the trial —

This one » sentence alone makes it indisputable that: the .

“44

detail which could easily be dispensed with—the Court was -

___ trying to ensure that “these crucial hearings are to be more

than a formplity.and [that] -petitionérs-fare} ‘not teft-én.~

- “tirely to reliance on government testimony ... .” 394

US. at 183.-The Alderman procedure is’ thus one “which

_ the Fourth Amendment exclusionary rule demands.” Id. at

~ 184 (emphasis added). |

But we have more than_this language in Alderman. Two.

'* weeks later; when the Court reaffirmed its position in

Alderman, it again made it clear that Alderman was con.

stitutional doctrine. -In Taglianetti v. United States, 394.

US. 316, it distinguished the issues. of legality and stand.

‘ing, where disclosure is’ not required, from the relevancy

issue, on the ground that |

_ “the in camera procedures at issue there [ Alderman]

+ would. have been an inadequate means to safeguard a

defendant’s Fourth Amendment rights.” 394 US. at -

317. . of oe oe .

-—--_-» his language, which-echoes the language: of. Mapp v. Ohio

° itself. when the Court adopted the exclusionary rule, 367 -

' US. 643, 652-53 (1961) (“other remedies have been worth-

less and futile”) makes-clear that the very viability of the

- - ,. Fourth “Amendment is at stake. | .

Indeed, the argument that only the supervisory power is

involved ‘was once made with respect to the exclusionary «

Tule itself,.see Mapp v. Ohio, 367 U.S; ‘at 649. The argu-

ment was of course rejected there, and its treatment here

should be similar and for the same reason: nothing else.

- will do to protect. Fourth Amendment rights. _

° : s : . '

2 ‘The ‘canaceliety power.” .

. The Government Brief refers to the “si ervisory power”

“as if it Were totally separate from constit tional eonsidera- |. -

tions. Sueh an approach is simplistic and wrong. Calling

| something an exercise of the“supervisory power” does. not

~ imply that it ean be dispensed with easily, or that it is |

in some sense unimportant. The so-called “supervisory

power” is often invoked in order to avoid having to decide

ze constitutional question, and not to decide, by implication

or directly, that the resulting rule is-in fact not a consti-

tutional requirement. For example, the rule of Cheff v.

Schnackenberg, 384 U.S. 373, 380 (1966) that a jury trial -

_ is required for a criminal contempt: penalty of more than

six months, was established “in the exercise of the Court’s

supervisory power.” ‘Two’ years later, however, it was in

effect followed in Bloom v. Illinois, 391 U.S. 194 (1968),

where a somewhat similar rule was applied’to stdtes on

constitutional grounds. See also McCarth y v. United States,

304 US. 459 (1969) and Boykin v. Social 395 U. S. 238

_ (1969).

Indeed, even in what remains a supervisory power sit-

uation, Jencks v. ‘United States, 353° US. 697 (1957), Mr. -

Justice Brennan, who wrote for the Court in Jencks, sub-'

sequently noted that “it is true that our holding in Jencks

was not put on constitutional grounds, for it did not have

to be; but it would be idle to say.that the commands of the

Constitution were not-close to the surface of the. decision.”

.Palermo v. United States, 360 U.S. 348, 362-63 (1959) .

_ (Brennan, J.. concurring) (emphasis added).

~The central issue is really not whether the ruling is

labeled “supervisory” or “constitutional. ” Rather, as Pro-

_ fessor Alfred Hill put it-in his penetrating article, The Bull

of Rights and the Supervisory omer, 69 Coluni. L. Rev.

— 46

181, 191 (1969), the real i issue is whether the rule in tes

tion is necessary to’ avoid “materially diminish[ing]. the

- effectiveness of the implementation that is constitutionally

mandated.” Some rules are, and some are mot. The lan-

guage quoted from both Alderman and Taglianetti ex.

| pressly. state that, as the Court put it in the latter case,

“in camera ‘procedures ‘at issue there would have been an

inadequate means to. safeguard ar. ‘defendant’ S Fourth ,

Amendment rights.” ~ é

"3, Relevancy, stariding and legality.

As the Court: pointed out in Taglianetti, this is not to

say that “an adversary. proceeding and full disclosure [are |

' required] for resolution of every issué raised by an elec-

tronic surveillance.” Standing, legality, voice identifica-

tion—none of these really requires the same kind of in-

formed analysis of specific conversations that relevancy —

and taint do. In some cases, deciding legality may not

really require anything more than analysis of the basis.

on wHfich the eavesdropping was authorized ; any other con-

tentions, such as that the eav esdropping exceeded the au-

thority as to time, place or person, can usually be deter-

mined ith camera, although even here an adversary

proceeding would seem at least useful. Asserting standing 7

will usually require even less of a detailed knowledge of

. ‘what was overheard, especially in view of: the restr stive -

standing rules in Alderman limiting standin; to” ohe “whose

conversations were ov erheard, or on ‘whose renises:s

surveillance occurred. . ‘Both can simply be ne the

-Court can check, in camera, for as the Court indicated in

_ . Taglianetti, it is not true here “that ‘the task is too com-

| plex, and the margin for error too great, to rely wholly .

‘on the in camera judgment of the trial court” —

Jn contrast, the Court in Alderman stressed why in.

: camera procedures were inadequate. ‘The problem is even

more: acute than the Court indicated, where. dlectronic

eavesdropping is concerned: the tapes are’ rarely. in intro:

duced in evidénce and are used almost exclusively for leads.

Moreover, | much. of this eavesdropping is ‘explicitly for’

. “intelligence,” the relevancy of which to any specific crime

is often well beléw the: surface. Thus, unlike these other.

issyes, the relevancy issue where electronic eavesdropping :

is concerned is not only complex but tes ri difficult

and paeety present.

. CONCLUSION ~

The. Government cites United States v. Robel, 989 US.

258, 267 (1967) for the preposition that “the Constitution

has never been read as depriving the’ Government. of. the

power to protect itself against subversion.” But as J udge

Edwards quoted Benjamin Franklin:

“They that can give up essential liberty to obtain a. .."5

little ° temporary safety deserve neither liberty. nor co

. safety. % .

| cuirce the true significance 0 of Robél, which struck down

aban on employment of Communists, is Chief Justice War-8

Ten’s oft-quoted. comment that the.

“concept of ‘national defense’ cannot be iecenell anend ‘°

in itself, justifying any exercise of legislative power

_ designed to promote such a goal. Implicit in the term

‘vational defense’ is the notion of defending those |

values and ideals which set this Nation apart. For

- almost two centuries, our country has taken singular

. pride i in the democratic eals enshrined i in its Consti- .

tution, and the iatet Prey of those . ideals have:

found expression in the First ‘Amendment. It would

indéed be ironic if, in the name of national defense,

we would sanction the subversion of one of those liber. .

ties—the freedom of association—which makes the de. °

fense of the Nation worthwhile. ” 389 U. S. at 264.

Phis case tests’ the anestion he whether the rule of law :

| i8 to be imposed on all officials, - and low. As Mr. Jus-

- tice Brarideis said in Olmstea

. “In a government of laws, dxintenes of. thi gov ernment

will be imperilled if it fails to observe the law scrupt-

lously. “Our gov ernment is the potent, the omnipresent 3

teacher. For good or for ill, it teaches the whole people

by its ‘example.’ Crimé is contagious. If the Govern.

-/ ment becomes a lawbreaker, it breeds contempt. for

laws ‘it invites every man to become a law. unto him.

sélf; it invites anarchy.” 277 OU: 8. at 485.

Respectfully seer Le

> < | ie Henman Scwwartz

: . . TU West Kagle Street. ..,

i. res Buffalo, New York 14202. |

- ; Maetun L. Wuir :

) _ American Civil Liberties Union

: , : New York, N. ¥. 10010 |

Enwix B. ‘ELLMANN

1520 Penobscott Building ,

Detroit, Michigan 48726

_ Attorneys for Amici Curide

~ APPENDIX A

° . - Statutes |

18 U.S.C. §2518(1) (e)

§2518. Procedure for interception of wire or oral commu-

~ nications

(1) Each application’ for an order authorizing or ap-

proving the intereeption of a wire or oral communication

shall be made in writing upon oath or affirmation to 'a

- judge of competent jurisdiction and shall state the. appli- :

eant’s authority to-make stich application. Each application ,

. shall include the following information:

(), a full and complete statement as to whether or

not other-inv estigative procedures. have been tried and

failed’ or why they reasonably appear ta be unlikely

__ to succeed if tried or to be too dangerous ;° ° ;

es * .«*

18 U. S.C. §2518(7).

(7) N otwithstanding any lias provision of this chapter,

» any inv estigative or law enforcement officer, specially des- -

ignated by the Attorney General or by the principal prose-

euting attorney of any State or subdivision thereof acting

pursuant to a statute of that State, who ‘manegnemny deter-

mines that— — |

(ay an ‘emergency “situation exists with respect to

. conspiratorial activities threatening the national. se-

e -

“s

curity interest or to conspiratorial activities character.

istic of organized crime that reqnires a wire oF oral

communication to be. intercepted before an order av-

| obtained, and

(b) there: are erouiede: upon wink an. order. could

be entered under this chapter to authorize such inter.

ception,

Iay intercept such wire or oral eommunication if an appli-

cation for an order approving the interception is made in.

accordance with this section within forty-eight hours after

‘the interception has occurred, or begins to occur. In the

absence of an order, such interception shall. immediately

terminate “when -the communication sought ‘is obtained or - .

when the application for the order is denied, whichever.

is‘earlier. In the event such application for approval is

denied, or in any other case where the interception is ter- .

minatéd without an order having been issued, the contents

_ of any wire or oral communiéation intercepted shall be

treated as having been obtained in v iolation of this chapter, +.

and an inventory shall be served as prov ided for in sub-

— section (d) of this section on me person named in the

- application. t+, a vn

5} :

APPENDIX B-

| Departmént of Justice —Senator : |

3 Kennedy Correspondence

“(Letterhead « of United States ‘Senate, Committee. on the

Judiciary, Subcommittee on Administrative Practice. and

Procedure,. Washington, D. C. 20510) -

ey 5, 4971 .

‘ Honorable ‘J ohn Mitchell

Office of the Attorney General:

Department of Justice

‘Washington, D.C.”

Dear Mr. Aboriey General:

- As you know,’ the Subcommittee. on. Administrative

Practice and Procedure has in recent years been extremely

interested in the subject of electronic surv eillance, both

in connection with its continuing study ‘of practices of

federal agencies ‘ahd others that may constitute invasions

of privacy and its role in the development and processing

of the legislation which eventually became Title III of

the Omnibus Crime Control and Safe Streets Act of 1968.

_ Both of your immediate predecessors and other Depart-

ment officials appeared before the Subcommittee and their.

assistance was’ extremely valuable in our work. I know

tha’ your’ knowledge and interest in this area will also

prove helpful to us, and we look forward to working closely

‘with you and your staff. .

+. There has been increasing concern in the Congress and

in the Nation in regard to the current practices of the

_ Federal government in’ the utilization of electronic sur-

veillance. You yourself have announced a six-fold rise in

the number of -eourt-ordered wiretaps and microphone

eavesdrop installations between calendar 1969 and eal.

_endar 1970, and there have been a growing number of

| court cases involving surveillances initiated by the Federal

+: government without court orders. You have offered de-

tailed and impressive defenses of the increase in installa-

tions under-court order, and, of course, we will bé assisted

in reaching ‘our own conclusions as to that type by the”

‘~ annual reports of the Department on its applications to

the courts for wiretap and eavesdrop. orders. .

dn the. ease of electr onic surveillance fastallations made

withéut. court orders, the- public impression is that such

installations are not: only being: made more frequently,

but also that they are being used in a growing spectrum

of types of cases. Many.citizens fear that installations -

without court order are being used to avoid the require-

ments governing court- ordered installations, and especially

+ the necessity for the government to prove probable cause |

as to: ‘commission of specified criminal offenses to obtain

a court order. They reason -that.if there were facts to.

establish that such criminal offenses were ‘involved in a

- given case, the government would proceed by court order,

and that the increasing avoidance of this procedure reflects |:

increasing - surveillance of individuals and groups whose |

only offense is ‘disagreement with government policies,

personal eccentricity, outspokenness, or participation in

lawful activities of organized dissent, or a combination of

these. °

The problem for those of us who must assess these

eoncerns is that in the field of purely Executive wiretap-

ping and eav esdropping, as opposed. to. Executive tapping |

_and bugging under Judicial authority, we have scant infor-

mation on which ‘to base our judgments. The Director of |

. the Federal’ Bureau of Inv estigation has annually téstified

as to the number of “national security” installations, and

other Department officials including the Attorney General

have from time to. time also referred to such a figure in

Congressional testimony or. correspondence. T believe that

the most ‘recent such report referred to 36 wiretaps and

| : microphones. -

In view of your own statements. as. to the increased °

number of non-court-ordered installations, the growing

public concern, ' the need of the Congress and the public -

- for more information from which to determine whether and

how the limitations on such installations + ‘in Section 2511(3)

of Title III are being adhered to, Constitutional questions

aside, I am confident that you will agree that this would

be an opportune time to shed some light on Federal prac-

tices in this area. |

Would you, therefore, kindly provide the followi ing in-°

formation as soon as possible, sending us immediately

those items of information which are readily available,

and the ‘remainder when obtained: I recognize the fact .

that some of the statistics requested ,will be based on

documents which aré classified, but the requests have been

- phrased so as to admit of answers w hich should be able to

be unclassified. However, if you see a need to classify

“any ‘particular answer, please provide it separately, and

-it will be handled‘ on a classified basis.

A. For the period June 19, 1968 to December 31, 1968,

for calendar 1969, and for calendar 1970, please provide:

1. The number of electronic surveillance installatiéns —

_placed in operation or continuing in operation at any time

during the period, counting each device, connection, or

other unit as a separate installation where more than one

= installation was utilized to surveil the. same subject or”

group of ss acs | | | 4

eae of these, for each perina the panier. of each _

of installation, ie. wire communication intercepts, oral

communication intercepts, combination intercepts, or other.

” 3. For each period, the number of installations in each

_ of the following time categories: under 1 week, 1 week to

1 month, 1 month to six months, over six months.

4. For each sett the number of. installations i in A each

use category itemized in: Section 2511(3). of Title 18, a

' Code, as added by Title ID of P.L. 90-351, i.e. |

a. to protect the Nation against actual or potential at.

tack or other hostile acts of a foreign power,

_b. to obtain foreign intelligence information,

-e. to proteét national security information against for-

eign intelligence activities,

d. to protect against the overthrow of the gov ernment

: by force or other unlawful means, * ;

e. to protect against other clear and present danger to |

_ the structure or existence of government (for this category,

describe general nature of danger). |

. 5. For each. period, the number of installations the ‘dis-

semination of whose product. fell in each of: the following

| categories :”

a. disseminated only to 5 or ‘fewer persons within the .

: Federal government,

Db. disseminated only to 5 ‘“ 50 persons within, the I Fed-

eral government,

C.. disseminated té over 50 persons in the Federal gov e

ernment only,

da. dissemination total unknown but available on ee

to properly cleared Federal employees only, _

@, disseminated to state, local, or private acvitiea.

B. In the light of the recent conflicts among the Federal

courts as to the Constitutional and statutory limits of the

government’s power to initiate electronic surveillance with- |

out judicial authority, what interim standards and pro-

eedures has the Department adopted pending ultimate

‘* determination of these limits on a ‘nation-wide basis?

2 ‘Teply.

I appreciate your assistance and look forward to your

Sincerely,

. Edward M. Kennedy

~ Chairman — .

Subconimittée on "Administrative |

Practice and Procedure +.

THE ATTORNEY GENERAL

WAsHINGTON

. -( | February ‘16, 1971 -

~ Honorable Edward M. Kennedy, Chairman

- Subcommittee on Administrative |

_ Practice: and Procedure

| Balted States Senate.

Washington, D.C. 20510 °

Dear Mr Chairman: ar

. Tam pleased to acknowledge receipt of your letter of. 1

_ February 5, 1971, relating to the subject of. electronic sut-.

-veillance. Response to your requests will be made as soon

as the appropriate material can be cance and con-

sidered. ;

‘Sincerely, a

ys): Joun N. ‘Mendjraus ;

Lae, - = John N. Mitchell |

- JNM:skm ae is

ASSISTANT ATTORNEY. GENERAL

INTERNAL SECURITY DIVISION”

@«

DEPARTMENT or J USTICE

WasHINGTON |

March 1 1971.

Honorable Edward M. Kennedy

Chairman

‘Subcommittee on Administrative |

| Practice and Procedure.

United States Senate

. Washington, D.C. 20510

Dear ‘Mr. Chairman: | é

‘The Attorney: General has asked me to’ respond to your

_ Practices and procedures relative to electronic surv eillance.

In accordance with your ‘suggestion, we would ask that the

surveillances.

| With respect to your rr questions Al, A2, and A3,- we submit

the following : oe

dune 19 to December $1, 1968

Telephone Surveillances '

Tn operation less than one: week -

In operation 1 week to 1 month.

In operation 1 to 6 months __.

In operation more than 6 months

Tora | ) Scenes speineraetomenenecstse 50

aj inquiry of February 5, 1971, with respect to administrative .

breakdowns furnished with respect to the duration of sur-

veillance be treated a8 confidential since an examination of.

_ the breakdown might. indicate a — number of permanent ;

Microphone Surveillances His 3 ?

- In operatien less thar one week -

In operation 1 week to 1 month

fn operation 1 to 6 months

In operation more. than 6 months -_

Toray .

Calendar Ta ear 1969, ne

Telephone Surveillances Me eee

In operation less than 1 week | ey

In operation 1 week to 1 month \. is

_ In operation 1 to. 6 months

\. In operation more: than 6 months

ae Toran

e Microphone Surveitthnies ne. =a 7 - 2 \

, | b ofa less than 1 week Ll

ta ‘operation 1 week to 1 month

In operation 1 to 6 months _

In operation more than 6 mothe

a nee : RUC EA OR le eR, “ 1B :

: Calendar Year 1970

a Telephone Surveillances :

In operation less than 1 week -

In operation 1 week to 1 month

In operation 1 to 6, months |

F 7 ‘In operation more than. 6 months

| | Porat : seis

Microphone Surveillanees ;

In operation less than 1 week

Bs In operation 1 week to 1 month

-. In operation 1 to 6 months

{n operation more than 6 months

oe 16°

The annual totals set forth above can be misleading in that 3 |

—they. reflect the total installations authorized or in place

during the periods described. The total maximum number ;

of surveillances in operation at any one time during the .

periods. described are as follows: ean

June 19 to. December 31, 1968

Telephone Surveillances -.... tee ae

_, _ Mierophone Surveillances p-occenticcwnemnee 6

Calendar Year 1969 :

Telephone Surveillances sae iiiecon ini etoteces | OE

Mierophone Surveillances ~......---------2-----~ ie

Calendar Year 1970

Telephone Surveillances a ; 56,

. Microphene Surveillances -. creneengreneneess 6

" “With respect to your question: A4, he ntaliniin cannot

- be categorized’ exclusively under a single ‘efiterion ; -how-

ever, each installation meets’ one or more of the criteria _

itemized in Section 2511(3) undér Title 18 of the. United

States Code. : Pee. ; ee

Departmental records do not, as a practical matter, permit

us to answer question A5' with'the specificity you *request.

”

~ py

SG Deere

“a.

' Howev er, Dep iment policy limits. dissemination of: in.

>. fotihation\ of the nature inquired of -to persons on an

ce actual “need. to! know” basis. Appropriate security classifi.

hee . ‘cations and eontrol markings are imposed on such infor.

Y - a? mation. Nong, of this" information is disseminated to state

fs OF Total. governments or agencies except’ in rare instances

eos in order te. .prevent the commission of a-serious: feloniots 2

: act. In suelt instances, the souree “of the information i is.

a not divulged. | VN, Ue of Ra

‘ it sO EWE i ETO EAE *

In response to ‘qudstion B, we vida advise that since the

mo the ‘more- restrictive’ guidelines dictated by that decision

j and the standards enunciated iti the Omnibus. Crime’ Con-

- trol'and Safe Streets Act of 1968, which codified the param.

. wi etersrof the “national security” exception, No, changes in

ae * Department practices or, procedures have, ‘been initiated by -

Tedson of the conflict in. the recent district court decisions

to which you refer, :

ee ee

; . a Pench yours,

iii Meets . aN a : /s/ Roperr. €.. Marian

coe ae a ee 7 ¢ eS Robert C. Mardian’.

op, Assistant. Attorney General |

. ; , « :

. - * *. «ss

. .* “sea L ‘ 2 i

: . é . / °

. .* i . Sa us 7 :

» . - » ¥ | . i ‘

Py ; . 7 4 ae

a -Y | :

fo* F* : Sf \ “-

. so - . ~ 4

. . 4 .

’

(Letterhead of United: States Senate, Committee on the :

Judiciary, Washington, D.C. amsie.).

March 12, 1971

| Assistant Attorney General, ,

Department’ of Justice

Constitution Avenue and |

| “Texith Street, N.W.

M Yashington, D. C. —

" Dear Mr. Mardian: Meat? shgen 5 Yo. ee

Thank you.for your letter of March 1 replying to some ,

. of my . inquiries relating to electronic surveillance,

Although I can appreciate that each of the gurveillances

: operated w ithout court*order may not necessarily be sus-

. ceptible of eategorization exclusively under. any\ single

criterion. enumerated in Section 2511 (3) of Title III of —

: we would névertheless like to have a numerical break-down

by category or categories of the installations described in

| your letter. In this regard, we would also appreciate your _

; supplying us with a detailed description of the administra-.

| ¥ tive practices and procedures of your Department which |

culminate in a determination whether “Section 2511 (3)

criteria have been met and whether a recommended gur-

‘veillance: ‘should be approved.”

Ge. appreciate vee esintenes:

‘Sincerely,

Ne aMnek a Canes ’ [s/ Epwarp M. KENNEDY .

- eo Poe | Edward M. Kennedy

(Letterhead of Department of Justice, Washington 20530,

Assistant ees General, Internal Security Division) —

_ March 23, 1971 .

Hasarabic Edw ard M. Kennedy”

Chairman. .

Subcommittee on ‘Administrative

Practice and Procedure

United States Senate

Washington, D.C. 20510

Dear Mr. Chairman:

As. indicated to you in my letter of March 1, 1971, the

subject matter of question A-4 is such as to preclude eate-

gorization under a single criterion and no such categoriza.

tion exists.

I am unable to supply you with a “detailed description

of the administrative‘ practices and procedures” you re-

' quest, other than to say that all -requésts for telephonic

* and mierophonic surveillances, at least since January 20,

1969, to the Attorney Genera] have come from the Director

of the Federal Bureau of Investigation personally: Such

requests are handled exclusively by the Attorney General

acting for the President of the United States.

This Department has heretofore publiely set ‘forth’ the

- considerations involved i in making such determinatiows and

the reasons for refusing to disclose the.bases for the Execu-

_tive’s decision. In the brief of, the United States filed re-

, cently 1 in the Ninth Cireuit Court of Appeals we said: ~

_ “Tn authorizing the use of dactronic surveillance, the -

President through the Attorney. General must weigh

many factors, not-all of a purely factual nature, which

he cannot, and should not: be required to, produce be-

fore a magistrate.’ Moreover, jn making such a de-

-cision the President must rely upon the entire spectrum

of information available. only to him, much of which.

is derived from sources which, by théir nature, are

secret. Such information, more often than not, involves.

both: the Nation’s foreign and domestic affairs -inex-

tricably intertwined. Any attempt to legally distin-

guish the impact: of foreign affairs matters from

snternal subversive. activities ‘or to isolate one particu-

-lar factor upon which -an eventual decision is based,

is an exercise in, futility and eloquently demonstrates,

the wisdom of leaving these decisions to the Chief . «~

Executive who alone is in a position. te make such a

judgnient and who is answerable to the people from

whom the power is derived. |

- Another weighty factor bearing upon this issue is-the

- ¢act that disclosure of the bases for the Attorney Gen-*

eral’s decision’ or, the fact that such a surveillance is”

" “to be'conducted May in itself prejudice the national

interest.” — |

We hope the foregoing will be of assistance to you.

Very truly yours, |

/s/ Rosert C. Marpian

Robert. C. Mardian a

Assistant: Attorney General

April 1, 1971-.

Mr. Robert C. Mardian |

Assistant’ Attorney General

. Internal Security Division

Department of Justice

Washington, D.C. 20530

Dear Mr. Mardian

_ I am-writing with reference to your letter of March’ 3 .

_ advising that there is no categorization of the surveillances

; oe operated without court order under the eriteria enumerated

in Section 2511(3) of Title III of the Omnibus Crime Con-

trol and Safe Streets Act of 1968,

In view of the position taken by your Department in the

courts that certain of such surveillances are employed for

the purpose of gathering “foreign intelligence informa-—

tion”, and that other of such surveillances are employed

for the purpose. of gathering “intelligence information

deemed necessar: to ‘protect the nation from attempts of

domestic organizations to attack and subvert the exjsting

’ structure of, the Government”, would you please ‘provide

1 us with a numerical break-down of the installations’ de-

| seribed in your March 1 letter under these two classifi-

; _ eations. _ is

H ‘ . es , :

“ I appreciate your assistance,

4 | . Sincerely, |

| | Piiwasd M. Kennedy

Chairman.

Subcommittee on:

. Administrative Practice

69°.

-. DEPARTMENT OF JUSTICE ~ | ee,

_WasHINGTON

ASSISTANT ATTORNEY GENERAL

"INTERNAL SECURITY DIVISION Pons

. “= April 23, 1971

sdumoratia Edward M. Kennedy |

Chairman a |

Subcommittee on Administrative |

. Practice and Procedure >

United States Senate

Washington, D.C. 20510 .

Dear Mr. ‘Chairman:

This is:im response to your most iotent letter of April 1, , :

1971, in which you request a numerical breakdown of those

surveillances operated without court ordér, which are em-

ployed for the purpose of gathering “foreign intelligence

- information” and those which are employ ed for the purpose

of gathering “intelligence information deemed necessary

to protect the Nation from attempts of domestic organi-

zations to attack and subvert the existing. structure of the

government.” You indicate that these two categories are - a

| derived from the position recently taken in the courts by |

«the Department of J ustice. |

The position taken by the Department in the courts has

drawn a distinction between two separaté but closely Te-

lated powers of the President, pursuant to which he may .

constitutionally authorize electrohic surveillance. to gather |

intelligenee information without ‘securing a prior ‘warrant.

In the brief of the United States filed recently. in: the »

Ninth Cireuit Court of pence we said:

In United States v. Belmont,’ 301 U.S. 324, 328

(1937), the Court recognized the. existence and extent

of one of these inherent Presidential powers when it

held: that “‘the conduct of foreign relations was com-

mitted by the Constitution to the political departments —

of the gov ernment, and the propriety of what may be

done in the exercise of. this power [is] not subject to

judicial i inquiry or decision.” . the President, in his _

dual role as Commander in Chief of the armed forces *

and Chief Executive, possesses another‘ serious power

‘and responsibility—that. of safeguarding. the security,

of the Nation against those who would subvert the

Government by unlawful means. (Brief, pages 2-3).

As we have indicated, the inherent powers of the

Chief: Executive to conduct foreign affairs. and to pro-

tect the national security, while. somewhat related, are

separate and distinct. The Congress itself recognized

_ the distinction in the Omnibus Crime Control and Safe

Streets Act veg — (Brief, pages 17- 18).

This. wailing was not =" to imply that: a any single

surveillance could be considered as being employ ed. solel}

‘pursuant to either one of the aforementioned. powers. As

I have indicated previously, the decision to employ such .

surveillance is based on a-consideration of information in-

volving “both the Nation’s foreign and domestic affairs

inextricably intertwined.” Accordingly, the sara

has never attempted such | a categorization.

We hope the foregoing will be of some assistance. :

_ Sincerely, ”

' /s/ Rosert C. bisa

Robert Cc. Mardian

Assistant Attorney General j

APPENDIX C

Letter-to Hoi, John N. Mitchell from

Constitutional Law Experts |

_J une 20, 1969

The Honorable John N. Mitchell=. = 2,

‘The Attorney. General | . ~

of the United States. =. -

‘The Department of Justice oe :

Washington, D.C. _.

Dear. General Mitchell :

The New York Times esis reported that the Instice

Department claims that it may wiretap and bug domestic

- groups which seek “to attack and subvert the Government. .

by unlawful means,” free from judicial. supervision. To

grant such a claim would gravely threaten | some of our —

‘most fundamental. liberties as well as the rule of law.

itself. Today, both liberty and law are undergoing’ tests °

as sevére as any in our history, and this claim by an

agency charged with furthering these values, can only -

_ Inake their defense even more difficult. Nor is such au-

thority even necessary, given the unprecedentedly broad

_powers recently granted the Government with respect to -

, electronic eavesdropping, and os ‘subversion and

disorder.

| ’ “Electronic bugging and wiretapping are so dangerous to

privacy, freedom of speech and freedom of assembly: that .

until just a few years ago, few were willing even to con- .

_ sider granting such powers except for the most serious

offenses like espionage, treason, kidnapping, and murder.

Now, ef course, the Omnibus Crime’,Control and Safe .

. Streets Act of 1968 permits this device fora broad range.

-. of offenses, though generally under court supervision. And

though an argument can be made for an exemption from

- Judicial scrutiny for eav esdropping in foreign affairs—as

to which: we take no position except to‘note that the Bu-

-_preme Court’s opinion in Katz v. United States expressly

left this question open—we firmly condemn this’ attempt.

_-_»” to obtain such absolute — ——- our own 1 people in -

"* domestic affairs. |

* The Founding Fathers, who were hot unacquainted with ~

‘domestic thréats and disorders of the ‘most serious nature,

understood that no one can be trusted with unchecked

>’. power over. the lives. and effects of other men. This in-

sight was incorporated into the. Fourth Amendment, with

its provision for judicial controls over official searches, and

. seiztres. Today, electronic devices are infinitely ‘more in-

trusive, invisible and dangerous. To accept the Depart-

_ Inent’s claim of /non- reviewable discretion in the. use of

such devices, to agree that only “the executive: and not

_ the judicial branch” has the “competence” te determine

whether “it ‘is appropriate to ‘ utilize eléctronie ‘surveil-

lance”. of ‘domestic groups, is to repudiate one of our oldest

- and most vital traditions. Why indeed is the Department

unwilling to submit itself to judicial oversight? The pro-

ceedings are ex parte and can remain confidential as long

‘as nécessary, and the federal judiciary has an unblemished

record for maintaining such confidentiality.

The argument that Big Brother knows best has been

steadily invoked in order to resist the application of many

.* + other provisions of the-Bill of Rights, and it has ‘consis-_

tently been rejected: As was pointed out by. Justice Robert

H. Jackson, a man ‘whose. Nuremberg experience ‘had -

taught him ‘much about. a police state and yet one who

was no friend of disorder, “The point of the Fourth Amend-

ment, which often'is not grasped by zealous officers, is...

that its protection consists in requiring that those [normal —

inferences which reasonable men draw from evidence] be

drawn by a neutral and detached magistrate instead of:

being judged by the officer engaged i in the often competitive -

enterprise of ferreting out crime. * Jolinson v. US., 333 - |

US. 10, 14 (1948). -

- Nor can we ignore the fact that the power sought to be

legitimated by: the Department was used not only against.

five political dissenters who are- “defendants i in the Chicago

conspiracy, but against one of the ‘most. revered leaders

of our time, Martin Luther King, Jr., even after Presi- .

dent J ohnson ordered cessation of all av ‘esdropping.

Surely there can be no more conclusive—or 8ad—demon-

stration of how tlubious, is the “competence” of these “men.

of zeal, well-meaning but without understanding,” to use

tates Brandeis’. words.. If Martin Luther King, Jr., the .

Black Muslim: Leader Elijah Muhammed, and vigorous .

opponents of the Vietnam war are considered appropriate

subjects for such. - TOSS violations of their tights, which

group vigorously seeking change, whether radical, liberal

or conservative, is safe?

Finally, it was reported: ‘that the Department says it

needs such: authority “to gather intelligence information -

- concerning those organizations which are committed .to

the ‘use. of : illegal methods to bring about changes in our

form of. government and which may be seeking to foment

- Violent disorders.” But such authority appears to be in

conflict with ‘§2516 (1) (a), (g) of Title IIT of the Crime

“oO

Control Act which seems to require that application be.

made to a court for authority to use electronic surveillance _

to obtain evidence of offenses under Ch. 115 of the Unit

States Criminal Code (Treaggp, Sedition and Subversive |

Activities)’ and Ch.°102 (Riots), as well as for evidence —

of a conspiracy to commit any such offense, précisely the

m crimes for which the Department is seeking the authority

to eavesdrop without judicial supervision: }

Forty years ago, Justice ‘Brandeis warned that ‘ “9

. Governnient is the. potent, the omnipresent teacher . .

EY '.. “If the Government becomes a law breaker, ‘it breeds: com ff

- tempt for law; it invites every m&n to be a law upto hin-

= commencements throughout the nation these past

| weeks, students have charged their elders with hypocrisy

4 ~———and worse for urging them to stay within the limits of the

law i in seeking to achieve their goals, If the Department: ;

of Justice, whose primary-task it is to defend and‘ further

_ liberty. and the rule ‘of law, does not abandon its claim,

it will then be difficult indeed to deny the youthful indict-

‘ment. The Gov. ernment has corifessed error r before in the

_ interests of justice, and we eall upon it to do so again

in this instance. :

(Pe PN

& Yours very truly,

= «. AMSTERDAM

' Professor of Law: |

University of Pennsylvania

_ Law School

a See _ Vern-CounTRYMaN.

So oe Z Professor of Law

ae : "Harvard University

Law Seip

Yaue KAMIsaR

Professor ‘of Law. .

-.. University of Michigan

Norman Dorsen

Proféssor. of Haw

New York’ University.

- School of Law

: yeas B. Duxe

_. Professor of Law

Yale Law. School

. GERALD’ GUNTHER

‘Professor of Law

. Stanford. University

=<*School of Law

‘Law School |

Louis H. wen, |

—; Dean ‘and Professor of ‘Law *

Yale Law School: =

Arrnur R. Miter

Professor of Law.

University of Michigan

Law School

i" WY. aia, .

Professor of Law

. University of California : ;

School of Law, Los Angeles a

- MicHagr S. JosePHson’ ce

-. Assistant. Professor of Law

Wayne State University

Law School - ,.

Epaunp W._Krrca ~

Associate Professor- of Law /

- University of Chicago . =|

Law School = _-

Henman Scuwartz ;

Professor of Law -

State University of New York:

at. era! ‘School of Law.

‘Sean Wier

Professor of Public Law

-and Government

Columbia University

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.