Bertram Zweibon v. John N. Mitchell, Individually and as Attorney General of the United States of America

McGowan, Judge, Circuit concurred opinion. judgment and filed al., Appellants, et Bertram ZWEIBON Robb, Judge, Circuit concurred in opinion. and filed judgment Wilkey, Judge, Circuit concurred in MITCHELL, Individually and N. John part opin- and dissented in and filed part Attorney General of the United ion. America, et al. States MacKinnon, Judge, Circuit con- 73-1847. No. part part curred dissented Appeals, Court of United States opinion. filed of Columbia Circuit. District Bazelon, Judge, Chief dissented as to opinion III-B of the Part Circuit Argued Oct. 1974. Skelly Wright Judge J. and filed an June Decided opinion. As Amended June Rehearing Aug. Denied

596 Although

scrutiny. these cases indicate power President’s to obtain that the for- vast, intelligence information is eign he suggest do is immune requirements; constitutional question how the procedural President constitutionally powers exercise his though even those substantive remains powers Infra., 170 to exist. are found WRIGHT, Judge J. Circuit SKELLY at---, 516 F.2d U.S.App.D.C. joined by Judges an Circuit opinion 616-627. W. SPOTTSWOOD LEYENTHAL ROBINSON, III, Judge Chief (c) case and appellees Both in this B, except to Part con- BAZELON III— facing question other courts some cerning dissenting opin- which he a filed surveil- warrantless ion, that: concluded that, have asserted since “reasona- lance is the ultimate test under v. Six Unknown

1. In Bivens bleness” Amendment, the Agents of the Federal Bureau of reasonableness Fourth Named Narcotics, surveillance is 29 of warrantless such (1971), the on the circumstances of the Supreme Court L.Ed.2d determined However, approach case. a cause of action for federal particular held methodology remedy violations with the damages exists is inconsistent consistently Amendment. The warrant- has Supreme Fourth followed by appellees addressing conducted when Fourth Amendment less circumstances, special Fourth Amendment absent problems: constitutes Infra, U.S.App.D.C. at unlawful. per search is se violation. a warrantless ---, indicates, at 611-654. a court Keith decision As the there is a ask more than whether must (a) Although Presidents since the need to conduct legitimate presidential Franklin Roosevelt autho- time surveillance; it must also ask electronic warrantless national sur- rized warrant, places a neu- whether veillance, practice justify does magistrate judge and detached tral with the require- dispensing prosecutorial investigative between practice developed at a ment. Since the Executive Branch officials no when there were Fourth Amend- time rights and Fourth Amendment the First non-trespassory restrictions sur- ment citizens, should obtained before of our veillance, we view as cannot it an af- requires analysis so. an This doing by prior declaration Presidents firmative warrant would frustrate the whether surveillance activities were im- their goal in the cat- governmental legitimate strictures. In from constitutional mune which this is but one of cases of egory event, practice, unconstitutional Infra, example. inveterate, how cannot be con- matter no ---, 627-633. 516 F.2d at Infra, judiciary. doned at---, F.2d at 616— App.D.C. (d) balancing rights individual governmental needs the intelli- area, gathering gence pri- clear that (b) Prior Court decisions prevent review can judicial concerning plenary powers the broad of safeguard only and the abuses not field foreign President the of the af-. of but right privacy, Fourth Amendment predetermine the proper fairs do ac- Amendment values of the First presidential also powers of with commodation speech and association. Thus of freedom mandate of the Fourth Amendment the judicial required review should be prior require do that the President’s and legitimate it will frustrate the unless security surveillance orders be national A goals prior of surveillance. search judicial exempted from re- either the President’s upholding asserted cases exempted prior judicial view ment, foreign availability warrantless se- of less right to conduct intrusive obtaining information, a means for curity surveillance reveals almost total degree a requiring reasons for not war- and which surveillance lack of Nevertheless, scope and possible particular factors that duration will in- rant. fringe Infra, might abrogation rights. individual dictate warrant at---, (1) App.D.C. at 655— requirement include lack of F.2d competence to deal with affairs data; (2) danger of security leaks which Congress pro- intended that the might endanger lives informants cedures and remedies of Title III of the agents might and seriously which Crime Omnibus Control and Safe Streets security; (3) the national fact harm apply Act 1968 would to all surveil- being surveillance is not used for must, lance which under the Constitu- prosecutions, only but for “stra- criminal tion, pursuant be conducted ato warrant gathering; (4) the tegic” intelligence procedure. Since we' hold that a war- delay involved in the possibility is constitutionally required rant under procedure might result warrant in sub- case, appellants circumstances this harm to security; national stantial entitled to the liquidated damages are (5) the fact that administrative bur- recovery provided in Act, ap- unless courts or on the the Executive den pellees on remand establish an affirma- which would result from such Branch tive Infra, defense of good faith. requirement would enormous. Our U.S.App.D.C. at---, F.2<f analysis of these factors indicates that 659-673. persuasive as a reason for none is abro- (a) concerning The dictum Keith gating procedure warrant when the possible congressional legislation future seeks to obtain information President security in the national area is consistent Infra, foreign affairs. that affects our holding with that Congress intended at---, 516 F.2d at U.S.App.D.C. III Title as comprehensive as possi- 633-652. ble, covering all surveillance which the (e) Although analysis sug- the above Constitution dictates must be conducted that, except gests for situations where after only securing judicial approval. exigent are there present, circumstances statutory supported This construction is should be no category surveillance for language III, by the of Title by legis- its President need not obtain a history, by- lative proposed fate of warrant, holding our today does not wiretap legislation past over the sweep broadly. onlyWe hold in various years, policy considera- that, even where this case affairs Infra, tions. U.S.App.D.C. involved, the President must obtain a ---, 516 F.2d at 659-670. organization when the domestic (b) Appellees may remand, on how- subject which is of the surveillance is ever, damages avoid on both constitu- acting agent nor in collabo- neither statutory tional and grounds if can foreign power posing ration (1) that they establish had subjective holding threat. This national good faith belief that it was constitu- particularly reinforced the rationale to install tional warrantless wiretaps un- approach of the Keith In- decision. der circumstances case, of this fra, 170 U.S.App.D.C. at---, 516 (2) belief was itself reasonable. at 650-655.

F.2d Infra, at---, (f) judges will be forced to de- Since 516 F.2d at 670-673. “probable whether cide cause” to install exists, wiretaps we of- guidance Judge McGOWAN, Circuit fer some on the factors which concur- ring judgment judges issuing should consider in war- the court statutory grounds, importance These rants. include concluded that in escape the sought by general information order statute’s pro- Govern- af- (c) arguments “foreign for a The electronic surveil- warrantless hibition lance, exemption the warrant re- fairs” 2511(1) (1970), 18 U.S.C. the in- § strongest are where quirement within the wiretaps must fall stat- stant a collaborators with agents and . exemption for “measures utory addition, an ex- are involved. power protect Nation necessary against this narrow class of emption limited potential attack or other hostile actual minimizes conflict with First criminals foreign power.” Id. 2511 § acts Amendment values. and Fourth view, Since, Judge in McGowan’s do not di- include surveillances measures rected, “foreign exemption (d) affairs” If were, having these at citizens exists, therefore, applies only to sur- affinity foreign power with a whose no involving foreign agents and veillances feared, he would hold the acts hostile no application It has collaborators. illegal on surveillances instant wiretaps by employed the warrantless alone, reference ground without here. Executive Constitution. Judge concurs Circuit MacKINNON Judge concurs in the Circuit ROBB part, sepa- and files a part, dissents statutory of the court on

judgment statement. rate reaching without constitu- grounds questions. tional Judge WILKEY, concurring Circuit C., Lewin, Washington, D. Nathan judgment only of the court on Miller, Jr., J. and Herbert with whom grounds dissenting and on constitutional Minsker, C., Washington, D. D. Martin grounds, statutory concluded that: brief, for appellants. on the were Although regulated by or in vio- Atty., Dept, Christenbury, Edward S. provisions III, Title lation Justice, whom Henry E. Peter- warrantless JDL Gen., sen, Atty. T. Ma- Asst. and Kevin violated the minimal proce- nevertheless Gen., Atty. Asst. on roney, Deputy Constitution; requirements dural therefore, brief, appellees. for appellants cause BAZELON, Judge, and Chief Before against the appellees damages action McGOWAN, LEVENTHAL, WRIGHT, Fourth Amendment. under ROBINSON, MacKINNON, ROBB (a) question whether the sur- en WILKEY, Judges, sitting Circuit exempted should from the veillance banc. require- Amendment’s warrant Fourth Judge J. WRIGHT Circuit SKELLY balancing be answered can ment judgment of the court announced of intelligence gathering exigencies opinion an in which Circuit and delivered case constitutional in this Judges LEVENTHAL and ROBINSON prior judicial placed approval. values in which BA- Judge Chief concurred (b) approved by The waiver the Dis- except III— concurred as to Part ZELON is an extremely broad exemp- trict B, concerning opinion which he filed employment by whose dissenting part. subject might be to inordinate abuse. It Judges and ROBB Circuit McGOWAN grave poses a threat to the Fourth judg- concurring in the opinions filed privacy, political values of Amendment freedom, ment. judicial oversight gov- opin- Judge WILKEY filed an Circuit searches and seizures ernmental dissenting concurring part ion outweighed in case are not part. speed, secrecy, expertise, need filed a Judge MacKINNON Circuit in foreign freedom of action Presidential dissenting opinion. operations. intelligence

604 WRIGHT, Judge: J. SKELLY Circuit the duty protect to country foreign aggression or subversion.3 The past years Over the several there has very existence of such pow tremendous increasing anxiety1 increasing been and er, however, renders litigation2 susceptible concerning actions which the 4 abuse and endangers those Executive Branch of our fundamental Government personal liberties which the has undertaken under the Government rubric of “na was instituted to secure security.” for its tional citizens Undoubtedly the Presi whose and exercise dent, elevates our Chief nation and Com to a stature worthy of defense.5 Thus, Forces, mander-in-Chief our Armed although the attempt by the claim Executive imbued Constitution with vast prerogatives or infringe indispensable powers liberty in dealing name security and order problems generated with the vital by moti our by highest vated of ideals,6 with foreign powers, relations including judi- See, States, 713, g., Berger, The of Execu- e. Incarnation York Times Co. v. United 403 U.S. 4, Privilege, 2140, (1971) (attempt 22 U.C.L.A.L.Rev. 26-29 tive 29 91 S.Ct. L.Ed.2d 822 Military Symposium, (1974); enjoin publication material); After Viet- of classified Controls, Legal Ehrlichman, D.D.C., nam: The Search 49 Indi- United States v. 376 539, passim (1974); Hearings F.Supp. (1974) (memorandum order) ana on the L.J. 29 Henry Kissinger Wiretap- (national security burglary Role of Dr. defense to of Dr. ping Ellsberg’s psychiatrist’s office). Government Officials and of Certain the Senate Before Committee on Newsmen infra, 3. See 170 Relations, Sess., Cong., Foreign passim 2d 93d 615-626, ---, -, 516 F.2d at 630- Hearings (1974); Before the Subcommit- Joint Keith, note 2, 407 supra 631. See also U.S. at Practice and tee on Administrative Procedure 310-311, 92 S.Ct. 2125. on Constitutional and the Subcommittee Rights Acton, Essays Lord Cf. on Freedom and Judiciary of the Committee on the (Beacon 1948). 365 Press Power on the Subcommittee Surveillance of Com- Foreign on Relations on Warrantless mittee 5. As Mr. Chief Justice Warren in hold- noted Surveillance, Wiretapping and Electronic 93d ing section of one the Subversive Activities Sess., passim (1974); Cong., Subcommittee 2d Act of Control 1950 to be an unconstitutional of the Senate on Surveillance Committee abridgment right of the First Amendment Foreign Relations the Subcommittee on association: Practice and Procedure of the Administrative concept of “national [TJhis defense” cannot Judiciary, on the Committee 94th Senate itself, justifying be deemed an end in Sess., Report Cong., on Warrantless 1st Wire- legislative power designed pro- exercise tapping (Commit- and Electronic Surveillance goal. Implicit mote such a in the term “na- 1975); Report print by tee to the President tional defense” is defending the notion of on CIA activities within the Commission Unit- those values and ideals which set this Na- States, (June 1975); passim United States ed * * * apart. It would indeed be Barker, U.S.App.D.C. 312, 315, v. 168 if, defense, ironic in the name of national we 208, 25, (No. 1975) decided Feb. would sanction the subversion of one of (en banc) (Watergate burglars believed those liberties —the freedom of association— which makes the defense of the Nation security assignment); were on national Ameri- Triumph, Harper’s, Trial and can Character: worthwhile. 1974, (articles passim Oct. individuals in- Robel, 258, 264, United States v. 389 U.S. activities); Times, Watergate volved N.Y. 419, 424, S.Ct. 19 L.Ed.2d 508 1974, 1, 22, (allegations col. 8 Dec. of do- intelligence activity by CIA); Wash- mestic years ago, 6. Almost 50 Mr. Justice Brandéis Post, 22, 1975, (20- ington March col. perceptively eloquently observed: year-old program surreptitious opening Experience should teach us to be most on by CIA); first-class mail notes 107 & 197 infra. guard protect liberty our when the See, g., Schlesinger Holtzman, government’s purposes v. U.S. are beneficent. Men (1973) (chal- naturally 94 S.Ct. L.Ed.2d born to freedom are repel alert to military lenge operations liberty by to Executive-ordered invasion of their evil-minded rul- Tatum, Cambodia); greatest dangers Laird v. 408 U.S. liberty ers. The lurk in (1972) (challenge S.Ct. 33 L.Ed.2d zeal, insidious encroachments men of Army’s activities); well-meaning domestic Unit- understanding. but without Court, States United States District ed Olmstead v. United 277 U.S. (1972) 564, 573, (1928) 92 S.Ct. L.Ed.2d 752 48 ing (dissent- 72 L.Ed. 944 (hereinafter Keith) (challenge opinion). cited as to war- Shaughnessy, also Knauff v. security surveillance); 537, 551, 309, 317, rantless internal New 94 L.Ed. providing remedy illegal Executive prepared to vigilantly remain ciary must surveillance. channel responsibility own its fulfill constitutional action within I case embodies this present The bounds.7 Plaintiffs-appellants, 16 individu form, acute particularly problem of the Jewish were members als who the delicate and faced with we are since League (JDL) during the period Defense reconciling task the Presi difficult action,8 by damages this sought covered power asserted to obtain dent’s Mitchell, Attorney John then Gen from through use of information intelligence spe of the United and nine with the citizen’s eral surveillance electronic agents employees Federal cial right privacy to maintain his cherished Investigation9 electronic Bureau inviolate unrea associations overhearings plaintiffs’ governmental intrusion. More sonable which transpired conversations telephone over, must determine we whether Con during month of October 1970 and enacting Title III of the Omni gress, 30, January through 5 June 1971.10 Act and Safe Streets Control bus Crime alleged overhearings were to violate The 1968, (1970), 18 2510-2520 U.S.C. §§ rights under both Title III of plaintiffs’ relationship by to affect this intended in fact J., (“[s]ecurity were within the ambit (1950) (Jackson, dissenting) such situations 317 Cong. many 1974 & Adm. liberty the Act. See U.S.Code in that are the crimes is like (S.Rep.No.588, Cong., 2d name”). 2791 93d News in its committed (1974)) (“it is the intent of the Commit- Sess. Nixon, 683, 703, 94 States v. 7. United Operations] these tee Government [on 3090, 3105, (1974), 41 L.Ed.2d 1039 law, present under the cases borderline long-standing recently principle: reiterated this privacy, trespass and invasion of as * * * Many of this Court decisions clearly scope the Fed- within the viewed as holding unequivocally of Mar- reaffirmed Act”). Since the surveil- Claims eral Torts Madison, bury (1803), 1 Cranch 137 1970-71, case occurred in how- lance in this duty emphatically province “it is ever, has no effect on the cur- the amendment department say what the law proceedings. rent is.” infra, discrepan- 10. See JA at 73-74. There See also cases cited at---, is some gener- cy at 626-627. See as date the 516 F.2d surveillance was termi- Nixon, ally Symposium, alleged, States v. nated. Plaintiffs and the District held, (1974). 1-140 that the surveillance U.C.L.A.L.Rev. continued un- 8; til June ell, 1971. Id. at Zweibon v. Mitch- Although plaintiffs sought the named D.D.C., F.Supp. (1973). How- bring suit as a class action on behalf of all ever, deposition Mitchell’s Mr. and FBI records situated, similarly see JA at the Dis- others July indicate that surveillance lasted until never ruled on this issue. See trict Court (deposition Mitchell); 3. JA at 56-57 of Mr. Mitchell, D.D.C., Civil No. 2025- Zweibon v. 71, Edgar Hoover, memorandum from J. rector, FBI Di- (Oct. 1972) op. (pretrial slip at 3 hear- Attorney Mitchell, July 9, General opinion proprie- ing). express no as to the We 1971. The more conservative June 30 date ty in a case such as a class action 208-day would indicate a duration of the sur- one, given present particularly the fact that veillance. of the names of those indi- disclosure forced whose conversations were overheard viduals General, Mitchell, Attorney authoriz- Mr. statutory pose might itself difficult or constitu- equipment. of the surveillance ed installation problems. tional direction, Acting pursuant to his the other de- plaintiffs’ telephone listened to con- fendants illegal searches and seizures 9. Claims their contents in and summarized versations investigative or law en- conducted plaintiffs logs available to were made of the United States on or officers forcement See the District Court. order of brought now after March original recordings F.Supp. at 938. All government. directly against the federal destroyed general pursuant to a FBI had been (1974), 88 Stat. 50 amend- § Pub.L. intelligence policy surveillance. See JA at 2680(h) (1970) (intentional ing § 28 U.S.C. Mitchell). policy, (deposition of Mr. This Act, exception to Federal Tort Claims torts repre- with Government which is inconsistent (1970)). Although 2671-2680 §§ U.S.C. language occasions, has trou- made on other sentations appear the amendment does not See, g., United States v. other courts. bled encompass illegal non-trespassory electronic Cir., Huss, 47-48 surveillance, clearly Congress indicated that Crime Control and Safe quarters prior judicial the Omnibus without approval, Act of 18 U.S.C. 2510- §§ Streets had overheard conversations of cer (1970),11 Fourth tain defendants Amendm who were about stand trial. At a subsequent ent.12 hearing before shortly action filed Judge Weinstein,14 instant the Government pros the consoli proceedings in pretrial ecutor admitted that six telephone after lines cases United States v. criminal had been involved in the taps dated and that Bieber, (E.D.N.Y.), No. 71-CR-479 and there were “volumes and volumes” of Joffe, v. transcripts No. 71-CR-480 of States intercepted communicat United revealed that the Justice ions.15 (E.D.N.Y.),13 Plaintiffs-appellants herein al had wiretaps lege installed on their Department conversations were ille gally of JDL’s New York head- telephones monitored16 by this surveillance respect With to Title III of the Omnibus Crime Control and which occurred 11. surveillance III, prior Congress’ compre enactment Title to of the Alderman Streets Act of 1968 is Safe authorizing legislatively. legislation has been use of decision modified electron See 18 hensive (1970) specifically (transcripts illegal 3504 of § surveillance in delineated cir U.S.C. ic regulated wiretaps carefully pro judge need under be and disclosed if deter cumstances III, they general pending mines admissibility). relevant to For discussions of Title cedures. claim of Cir., see, Tortorello, See States v. 2 also United v. United States Bu Cir., 764, n.6, denied, tenko, 593, (1974) & cert. 3 494 F.2d F.2d 771-775 414 637-641 480 63, J., 866, (Gibbons, denied, (1973) dissenting), 38 L.Ed.2d 86 cert. sub U.S. (upholding States, 881, constitutionality III), of Title nom. Ivanov v. United 419 and U.S. 95 therein; 147, Scott, (1974) (discussing 43 121 United States v. S.Ct. constitutionality L.Ed.2d cases cited D.D.C., 233, 3504). (1971); Mandatory F.Supp. of § 331 238-240 Unit disclo S.D.Fla., Escandar, illegal F.Supp. of sure of the contents States v. 319 surveillance ed 295, overhearings required wiretaps For still 297-302 detailed discussion for oc 19, curring damage provision after III June 1968. Title and its See 1970 U.S. case, infra, U.S.App. Cong. see 170 to this Code & Adm.News 4027. also See 18 relevance at---, 2518(10)(a) (1970). U.S.C. § at 659-673. D.C. infra, U.S.App.D.C. 12. 170 at (cid:127) hearing appellants 15. at Brief 4. The be- ---., 516 F.2d at 611-614. Judge unreported. Weinstein is fore these Indictments in cases 13. were returned on presented 16. question Each court with the 12, May legality wiretaps of these in the criminal proceedings issue, compli- has either The were context conducted reached the see Bieber, holding E.D.N.Y., 71-CR-479, Court’s in Al- v. ance United States slip op. States, 165, (July 23, 1971) (sentencing 394 6 v. United U.S. 89 at derman S.Ct. memo 961, (1969), specified order), 22 randum illegal, L.Ed.2d 176 which found them to be procedures Schwartz, E.D.N.Y., to be followed see United States v. standards deciding 71- 26, 1972), quoted infra, (Sept. evidence in whether a criminal trial 170 CR-977 -, 653, product illegal noted the 516 F.2d at or the tainted an was surveil- at Although judge initially taps a trial de- Government’s concession lance. illegal, Cohen, S.D.N.Y., whether in camera a surveillance is see United States v. termine lawful, States, F.Supp. finding contempt v. 358 see Giordano United 394 vacated remanded, 310, 313-314, S.Ct. L.Ed.2d 297 sub nom. United States v. J., Huss, supra (1969) (Stewart, concurring); Taglianetti Appellees cf. note 10. now insist findings United 394 U.S. that those v. S.Ct. were due to the fact that fully (1969), required the courts were not L.Ed.2d 302 Alderman informed data illegal taps, upon argu- wiretaps if to the records of all even which decision install the ably prosecution, appellees n.4; was See Mitchell, D.C.Cir., relevant made. brief turned standing object to a defendant who has Zweibon over No. evidence; transcript Sept. adversary proceedings into to their admission hearing at 31- Although certainly appel be held could then on issue of we do not hold they collaterally estopped asserting also tainted other evidence. lees whether The legality surveillances, decision rationale for this was that “the task these we find it complex, margin merely and the of error too too curious that surveillances which were rely wholly great, judg- security wiretap” on the in camera “domestic “government which * * * identify court of the trial those ment were un concede[d] might contempt have when records contributed to the lawful” volved, citation was in Huss, supra Government’s case.” States v. see “foreign” note 113 at 971. See also infra. F.2d have become se from, Pratt, made to during they calls or or Judge on cross-motions for sum from, Court, they judgment received those tel- in the District mary calls granted this assertion de ephones. sustained motion, finding as matter of fendants’ Although defendants-appellees Attorney General had au fact each admitted that of the named since the wiretaps “after a determi thorized fact had in been overheard plaintiffs was made him that the activi nation during telephones over conversations the JDL were obviously detrimen ties claim this surveil question, peaceful the continued relations tal abridge plaintiffs’ did not statuto lance the United States and the Sovi between rights.17 constitutional pri The ry and threatened et President’s Union position ground expli for this mary authority and constitutional ability in an affidavit submitted for cated relations conduct this Mitchell, Attorney General in which mer Mitchell, D.D.C., Zweibon v. country,” stated:18 he (1973), F.Supp. holding telephone of law that matter prior as a au by “[n]o was authorized the installation from a Court is necessary thorization of the United acting President ease, where, as in this electronic surveil Attorney through the General in the foreign to the aspects relate lances of authority his relating exercise of Id. at 943.19 security.” foreign our national nation’s affairs and was the Pratt then concluded Judge that when protect deemed essential this nation a “clear threat to this country’s is against its citizens and hostile acts of there relations, it is the executive and foreign power and to obtain judiciary, which should deter intelligence information deemed essen- or not an of mine whether electronic sur tial United * * requires prior autho- *. veillance States 17. 18. capacities, vit of it was plaint. See Defense” trict Court and upon the whose at Bieber, supra supra fore the date of that decision. hibit A should damages defenses are which dictate applied curity wiretaps D.C. at---- support D.C. at States (2) (1) Defendants also based~upon Brief See JA at 14. complaint). 607-610 Since If the filed June repeated almost validity retroactively -, for is in defendants’ answer to plaintiffs’ complaint Supreme defendants illegality appellees they Attorney alleged. JA & note 42. -, ---, based on the note 16. 659-663 that that decision should not be 'surveillance which occurred position held liable was never discussed at now that which are were This interposed were Court’s of these in this at & note 1971 in See should quote General of the 20. there that, acting It was verbatim as the “First 4-5; unlawful, infra, reached personal infra, damage following urged upon even decision are wiretaps 516 F.2d at 612- damages. JA at 20 United States v. several defenses in this in their official from the affida- attached as Ex- absolutely strong 170 U.S.App. if the by defendants suit, liability that com- case, U.S.App. theories: the Dis- is based (answer actions factors United Keith, These us in and im- be in 19. note these express their articulate which App.D.C. pare we leave arguments, mune at---& Keith, ment on on remand. F.2d tapping to be fenses pects” official defendants 944. Plaintiffs (3) Judge question appellees at 41-66. he F.Supp. 274. case, brief actions Damages affirmative defenses to the extensively from see Keith immunity. 651-652, did. any opinion Pratt found a t-, be invalid and the initial determination infra, national for acted in the liability contend that and in had were lawful.' at 943. issue illegal note basis appellants See should not be awarded because was generally 363 reserved, briefed these legality light because of the of infra, F.2d at U.S.App.D.C. at -, as to the merits of these that, we should find these de- “clearly distinguishable.” However, liability. good deciding grant of our However, if we find because at 45-71 Court’s decision in of the see F.2d were faith belief that F.Supp. summary judg- infra, issues. Com- disposition District Court in the manner Both wiretapping, he “foreign involved in doctrine of concerning we do 670-673 with brief the wire- failed to question at 936- parties as & id.,

rization,” and the Attorney Gen- eventually shifted to its focus the inter were “reasonable actions within arena, eral’s where it was primarily national meaning of the Fourth Amendment opposing govern directed at Soviet were therefore lawful.” Id. at and emigration policies restrictive ment’s as to Soviet Jewry.20 findings related fur these sur- Judge Pratt’s ends, these JDL motivated therance by foreign were members21 veillances engaged spectrum a broad security, and of activi threats response light ties directed Soviet a reasonable officials and were threats, installations premised on the ac- States. These those ranged from purely activities peaceful JDL and statements members tions through demonstrations they provoked violence, acts of reactions on the including the bombing of Amtorg officials Soviet Union. part Although originally organ- the JDL was Intourist-Aeroflot22 offices in New York City.23 Soviet goals, various domestic officials to achieve vigorously ized Schwartz, See, animosity g., Threats and Bombs—A your country e. create hatred Nations, Times, Nasty for the N.Y. people Two Phase other towards openly nations and that 1971, 4, proclaimed col. 1. worsening § Jan. of relations goal. and the USSR between USA as its Many illegal the more violent activities by to the JDL attributed Soviet 1971) (unofficial B-2(4) (April Exhibit transla- Government, reported by or were the news government tion). particularly The Soviet been undertaken media to have individuals occurring upset stallations, demonstrations its near in- See, members of were active the JDL. who by such “hostile acts” con- B-l(3) (telegram at 1-2 Exhibit Amer- and, ducting clearly planned “a for the Soviet Embassy, State); to Moscow Sec. of ican Ex- Union, insulting scenario before the lenses of (translation B-2(l) of letter from hibit Ministry); Soviet- cameras,” movie television numerous Ex- B-2(6) (translation of Exhibit letter B-2(6), “using language” hibit offensive Embassy Dept, State); to of from Soviet Ex- mission, against of members the Soviet Exhibit B-3(5) (telegram from American hibit Embas- resulted, B-3(l). But even where violence State); sy, B-3(6) to Sec. of Exhibit Moscow speeches up demonstrations and which led to (telegram from Sec. of State to American Em- protected See, probably speech. were them e. Schwartz, Moscow); bassy, supra note Brandenburg Ohio, 444, 447, g., Even if these col. 8. acts were in 1827, 1829, fact (1969) (per 23 L.Ed.2d 430 members, by perpetrated JDL is there substan- curiam) (speech advocating violence cannot be for abuse when tial latitude such determina- prohibited advocacy unless “such is directed engaged investiga- are made those tions tory inciting producing or imminent to tion and action”). lawless ac- prosecutorial functions or rather than likely produce incite judiciary. of neutral members course, See activity much Of of attri- infra, U.S.App.D.C. at-& note clearly illegal. was buted to the JDL But the F.2d at 633-635 & government primarily punish- Soviet wanted of such criminal ment activities and indemnifi- Amtorg organization, trade is Soviet See, g.,- damages. B-2(l) for e. cation at 4 (“The Ministry Exhibit is the Soviet Intourist-Aeroflot airline. Violent (translation Ministry) letter of from Soviet activity political was also directed at Soviet * * * expects effective Washington. installations New York and immediately protect taken measures will be summary many For a activities, of of these Mission to the UN and the USSR other official F.Supp. see 363 at 939—942. Some the ac- * ** establishments Soviet that the government tivities which the specifi- Soviet persons guilty carrying out the above-men- cally protested clearly protected First impermissible severely will tioned actions speech. example, Amendment For Soviet Am- appropriate punished, and that Soviet estab- bassador to the United Nations Malik wrote to fully and citizens will be lishments indemnified Mayor prevent the a “hostile of New York an effort to damage inflicted for the as result of these taking place demonstration” from actions”); B-3(6) (telegram Exhibit from Sec. Cove, his residence Glen New York: Embassy, Moscow) to American of State (“USSR my express surprise but I can fact over the embassy Dept, insists that State take * * * demonstration, steps immediately [that] all suitable ensure securi- you place. suppose, take It hard ty employ- Soviet establishments and their imagine S.; authoritative U. S. punish authori- U. to fine and ees in criminals who * * * powerless be so explosions ties can to deal with the perpetrating are and to * * * group hoodluming Zionist element compensation damages who pay Moreover, ”). for propagating ultrachauvinistic rasist [sic ] there is no indication that the State ideology people” and fascist “chosen Department intelligence wanted information activities, 25th session of the General these sion of protested continuously Assembly of the United Nations.24 the United States held for In the wake responsible. Government Although there no was evidence that General, Attorney protests these surveillance had achieved its pur this of international possibility fearing the aim of “provid[ing] advance ported retaliation or Soviet embarrassment knowledge activities JDL in Mos- living citizens American causing international embarrassment country,”25 gave approval Attorney his to an this initially General cow, request a second FBI approved for for authorization to install au request FBI thority to install a headquarters wiretap beginning in during JDL on wiretaps early January request 1971. This second 1970 on the oeca- of October month JDL, ap- activities of the since it on the which “could create a situation internation parently with “the return content of indict- country.” to this al embarrassment See Plain resulting prosecutions” ments as deter- (memorandum Edgar M-l tiffs’ Exhibit from J. illegal activity and Mitchell, was concerned rents Sept. 1970). to John Hoover No formulating legislation designed “Federal mention was made of Soviet threats of retalia future acts of to deter violence and harass- against American citizens in Moscow or B-l(5) (letter Exhibit from the ment.” Under- diplomatic of JDL activities on the effect rela secretary Attorney of State to General Mitch- Attorney with the Soviet Union. The tions ell, 1971). Although accept, we Feb. for General nevertheless contended that his deci case, appellees’ purposes assertion that wiretap to order the was also sion based on purpose of the surveillance was intelli- imparted during other oral information him gathering, aspects gence these and other Kissinger (then with Dr. conversations head of see, us, infra, U.S.App. facts before Security Council), Undersecretary National 26, 31-32, 34, Irwin, notes Secretary at-& D.C. and Assistant for of State Eu 31-32, 34, 24, 26, demon- government protested pub- the Soviet were all possibility when there are no written of abuse acts, protests and even the Soviet justifications instituting lic and the for of the records worsening of Soviet-American relations were lack of records Such allows a surveillance. phenomena publicly known rather than nation- justified on information subse search to quently See, Schwartz, supra al secrets. e. from the surveillance' obtained and 20, 2, 8; Times, 9, 1971, at col. N.Y. Jan. permits assertion more the information 1, (reporting protest” at col. “stem and “So- on than was fact the case. Prior relied was against viet threat to retaliate Americans in approval wiretapping, among for other News, Moscow”); Daily 13, 1971, N.Y. Jan. benefits, at of course freezes the record as to the 3, cols. 1-3. upon which the surveillance was based. data Ohio, 89, 96, See, g., Beck v. requesting approval 24. The memorandum of 228, 223, (1964) (in re 13 L.Ed.2d 142 the surveillance stated three reasons for the arrest, validity viewing court constitutional (I) “proclivity the JDL’s installation: for dem- “the facts available to the offi look to must against and onstrations violence” Soviet and arrest”); Aguilar moment of the v. cers at the diplomatic Arab injury installations which resulted in n.1, Texas, private citizens and law enforcement (“It elementary (1968) is L.Ed.2d officials; (2) reports news media that the lead- warrant, validity passing the of a on organization er of the JDL stated that reviewing consider infor court attempt hijack might an Arab airliner if magistrate’s brought to the attention” mation by continued; similar activities Arab terrorists (emphasis original)). infra, See also (3) foreign dignitaries and the fact that 143, 144, area. mation in this Department nor State ther the National Q part regular was not But it a of ihe Security Council had done so. Id at 47-49. Attorney to have someone routine General’s Office from the or (memorandum someone in the 27. See Plaintiffs’ Exhibit M-2 Internal Security Mitchell, days Division check Edgar 4, after ten Hoover to John from J. Jan. days thirty specifically 1971). after see what The memorandum also noted had that the by wiretap a been recovered of had this blamed JDL for kind? Soviet Union cancella- obligation A was No. That country of in this tion of tours groups. Soviet cultural FBI, keep us informed of it. at 2. Id (deposition Mitchell). JA at 56 Mr. Al- 28. Id at 2. though ly personal- Mr. Mitchell asserted he requests (memorandum 29. reviewed all security Plaintiffs’ Exhibit M-3 national from 59, Mitchell, wiretaps, Edgar 31, id. at a J. Hoover to John see recent March Court 1971). Attorney decision indicates General concerning was somewhat less faithful his F.Supp. (Conclusion 30. See 363 942 of Law statutory duty to authorize surveillance under ll(w)). provisions of Title III. See United States supra. Although 10 31. See note Mr. Giordano, Mitchell 505, 1820, 416 U.S. recall the reason the could not installation was (1974). L.Ed.2d 341 were handed down indictments violation. the Supreme criminal Court (five whom individuals several ruled that first warrantless electronic case) whose conver in this plaintiffs surveillance conducted through are non-tres attorn those with their sations, including passory methods35 is an unreasonable in violation of were overhead Jus and seizure ey,33 search within the meaning of regulations.34 Department the Fourth See Katz v. tice Amendment. States, 389 S.Ct.

II 19 L.Ed.2d But in a foot note, see id. at 358 n.23, S.Ct. at In Bivens v. Six Unknown Named explicitly the Court cautioned: Agents of the Federal Bureau of Narcot safeguards prior Whether other than ics, by magistrate authorization (1971), L.Ed.2d 619 the Supreme satisfy the Fourth Amendment in a held that a federal cause of action exists involving situation the national securi- remedy violations the Fourth question presented not ty by Amendment and that damages are re case. upon coverable proof injuries result ed from the violation. Although three expressed There is Justices still their doubt, some however, as subject in concurring opini whether views on this all warrantless wiretapping ons,36 issue constitutes was squarely attorney repre- was President of the United legal Zweibon States or his Plaintiff chief officer, Attorney General, crimi- senting of the defendants several has con- requirements security sidered the proceedings. national nal and authorized electronic surveillance as infra. The also note at 57. JA reasonable. wiretap requests autho- Jan. Sept. 14 and. monitoring of the recognized that rizations 88 S.Ct. at 518. 389 U.S. at Alarmed “interception might result surveillance “wholly green light” unwarranted to Exec- this utive involving are or who individuals conversations may surveillance, Douglas, Mr. Justice pending attorneys in defendants joined, responded Mr. Justice Brennan whom requests indicated cases.” Federal vigorously: prior comply memoran- awith FBI would Attorney Neither the President nor the Gen- Attorney ordered General dum that magistrate. In matters where is a eral overhearings were such individuals any security may be believe they involved logs off, and turned to be detached, disinterested, are overhearings to be sealed accidental magistrate court or as a must be. neutral anyone in the Justice else kept unavailable separation powers Under the created Department. JA at Constitution, the Executive Branch the supposed is not States, supra v. United 35. Olmstead be neutral and disinterested. wiretapping previously held that had and use vigorously investigate it should Rather prevent through such obtained of evidence did of national breaches the Fourth Amendment not violate since pertinent prosecute those who violate the trespass constitutionally into a no there was Attorney laws. The President and federal tangible nothing protected area and was properly parties, are interested General cast infra, See also seized. at---, adversary, in national the role of Similarly, 516 F.2d at 616-618. They may even be the cases. intended vic- “bug” considered to be free from consti- a tutional ized spies action. Since of subversive tims if there was no strictures unauthor- protection as entitled to the saboteurs subject’s premis- physical invasion of the suspected gam- Fourth Amendment See, e. Goldman v. United es. petitioner, agree I cannot like blers 129, 135-136, 62 S.Ct. 86 L.Ed. 1322 U.S. spies and saboteurs are involved where quate rights ade- (evidence (1942) admissible where federal protection of Fourth Amendment detectaphone agents attached used to wall of when President is assured and At- adjoin- to overhear conversations in one room position torney assume both the General room). ing disinterested, adversary-and-prosecutor and magistrate. neutral 23, majority’s Commenting footnote on the White indicated that such an inher- Mr. Justice 359-360, ap Id. at 88 S.Ct. at cited with power did exist: ent Executive Keith, supra proval note 407 U.S. at require proce- the warrant should not 92 S.Ct. We magistrate’s judgment if and dure 612 of the Court38 held that no exception to the Court until United

presented37 justified exists for surveillance solely v. United States on District Court States of domestic the basis threats to the [Keith], na (1972), the scope L.Ed.2d narrowed security. tional Despite the fact possible exception to the warrant expressed no opinion Court as to the requirement. result that would required if foreign carefully opinion, In a reasoned Mr. powers involved in the threat Powell, writing for six members Justice national security,39 some courts have indicated) testimony had conversations with States, Alderman v. discussed at FBI as as other mem- well supra, the Director bers of procedures note 14 lowed in involved to be fol- Security (including the National Council determining whether evidence was Department (in- Kissinger) Henry cluding and the State by illegal wiretapping, tainted and the Justices Irwin, Undersecretary Assistant Secre- procedure proper split applied over to be Hildebrant, European tary Affairs State security implicat- when national interests are Stevenson) concerning Department Counsel particular, argued ed. Mr. Justice Fortas impact activities on this nation’s of JDL the foreign rigid that national material—“a * * * (including of Soviet threats re- affairs category specif- limited ically [of material] diplomats against United States taliation. sabotage, espionage, directed to acts of exchanges, Moscow, of cultural cancellation aggression or states,” or on behalf of general deterioration of Soviet-American and a (opin- 394 U.S. at 89 S.Ct. at 985 wiretaps relations), that the were installed concurring part dissenting part) ion Attorney had determined that General subject after not be ruling —should to the Court’s threatened the continuation of illegally those activities obtained surveillance data must ability peaceful and the President’s relations turned over to a criminal defendant wheth- authority to conduct this na- and constitutional prosecution. er or not it is relevant to his allegations Similar in the affairs. decide, tion’s however, Court did not rantless national whether war- Attorney affidavit in Keith were ac- General’s security wiretapping was in cepted as indicative of See, g., e. fact unlawful. Giordano v. United threats, though even those internal supra atU.S. See, domestic crime. involved also J., threats (Stewart, concurring). S.Ct. 1163 n.2, 303, g., 300-301 & U.S. at Burger 2125; infra, 38. Mr. Chief Justice U.S.App.D.C. at---, concurred in the result, Rehnquist while Mr. Justice took 651-654. no part in consideration or decision of the Judge case. acknowledges McGowan White, concurring judgment Mr. Justice of the in the wiretap authorizations ordered that evidence Court, premised holding have prosecutori- derived therefrom not be used for illegal that the utory grounds. purely surveillance was purposes stat- al and admits that nothing there is n See notes 222 infra. the record to indicate that fruits were in fact purposes. used for such infra, U.S.App.D.C. 39. See at - & note McGowan, Judge Yet suggesting without 651-653 & note 189. 516 F.2d at Judge findings clearly Pratt’s erroneous, opinions concurring judgment In their say seems these were electronic sur- court, Judges McGowan and Robb of this actually veillances conducted for law enforce- indicated, contrary to the submission of the purposes ment comprehension and thus were not within the finding and the of the District Government Court, security proviso of the national merely involving that this is a case do III, infra, see of Title 170 U.S.App.D.C. security. crime rather than mestic at---, Although 516 F.2d at 659-673. assertion, however, simply sup This disagree Judges we key finding MacKinnon and Wil- See, ported by the record evidence. e. Wil to the extent state we have made a key opinion infra, at- wiretaps & that these were in fact insti- Judge n.11, F.2d at 690-692 & n.11. good purely tuted in foreign faith acquisition for the Department quotes two State mem McGowan (we affairs information leave it to the (and record one of out of a voluminous oranda the two was written trial court’s discretion on reopen remand to after the surveillance had question motivation, that infra), see note 274 instituted) prove Depart that the State been present on the record we are con- only sought “more effective enforcement ment accept strained to the District finding Court’s laws,” opinion at McGowan of the criminal 682, that the surveillance was neither intended nor Depart FBI the Justice and that the employed acquisition for the per- of evidence away emphasis “significantly shifted the ment taining prosecutions opposed to criminal law enforcement alone.” Id. criminal intelligence mere information. See note 23 su- However, Judge Pratt found as a matter of fact pra. wiretap Attorney prior initial Moreover, Judge McGowan indicates that deposition (as his affidavit and had General if “the fruits of even the surveillance in this exception subsequently held that such an ly poses problem meaning of the in fact exi of the Keith decision and the requirement the warrant scope valid- viability distinction ity and be- have sts.40 We serious doubts as to the justified surveillance on the basis tween methodology employed by courts,41 those foreign, domestic, opposed as we therefore undertake analyze to the national security. threats the issues with which we are presented more in a manner faithful to the spirit Although we believe that Keith. implicated of the although analysis policies by and rationale for For security surveillance42 eign indicates suit, damage this case is a civil it square- solely purpose pro- case were used viding for the foreign powers, in collaboration with and “in security” protect foreign diplomats security” security” ternal or “domestic surveil and avoid exacerbation of Soviet-American re- predi lance will refer to surveillance which is lations, n.l, opinion pri- see McGowan at infra, cated on threats. See U.S.App. mary purpose of the surveillance would still be -, “Foreign 516 F.2d at 651-653. D.C. at security” law enforcement because it is irrelevant that to threats to the will refer structure “the threatened crimes in this case were of a or existence Government which emanate greatly pre- the FBI would kind indirectly directly foreign pow from a either er, provision security infra, ferred— 170 U.S.App.D.C. see at-& precautionary steps prevent other rather —to 516 F.2d at 651-653 & note and a * * prosecute pre- than vent crime can *. The effort to “foreign security” surveillance will refer to sur fail, always pros- in which case predicated which is veillance A such threats. U.S.App. is sure to follow.” Id. ecution foreign security is a surveillance at---, at 682-683. This D.C. regardless provoked of the stimulus that implies potentially if crime is involved or foreign power; thus the surveillance in this security surveillance, in a national involved Judge foreign security case will be treated as a sur reject McGowan would the President’s though veillance even the Soviet threats were security justification national and treat provoked by actions of a hostile domestic or surveillance as one directed at criminal law ganization. We believe such treatment is re However, Judge ap- enforcement. proach McGowan’s quired by holding the limited presi- would effect mean that most security” Court in Keith. See id. “National traditionally actions dential within fact, considered to be generally interchangeably will be used security sphere not, the national “foreign security,” except where the context sphere. example, presi- within For “foreign makes it clear that it refers to both protect dential actions undertaken “to national security” security.” and “internal security information intelli- Government, It should also be noted that the gence activities” are not considered vital infra, limiting argument see note 87 is not its security, specifical- to our national but are also exception requirement for an to the warrant ly encompassed language of 18 U.S.C. foreign security; rather, argues situations of 2511(3), infra, U.S.App.D.C. discussed § exception, that such an based on the Presi- at---, 516 F.2d at 659-673. And cer- preeminent powers dent’s in the field of for- tainly taking those actions the President affairs, eign justified any intelligence prefer espionage would prevented see the crime of gathering produce surveillance that will infor- culprits prose- rather than have the mation “affects” our relations with for- transpired. cuted Judge the crime after has Yet eign powers. See, appellees brief for approach deny McGowan’s 29-32; infra, U.S.App.D.C. at categorized such surveillance should be ---, 516 F.2d at 655-657. For the having since, primary security purpose part analysis most ment’s our will treat the Govern- prevent if the surveillance failed to position as if it were limited to the espionage, “prosecution crime of is sure to fol- category “security” more reasonable situa- low.” However, tions. there is no litmus test for - infra, separating U.S.App.D.C. foreign powers those 40. See actions of --, which affect F.2d at our 636-641. those which do not, particularly when it is recalled that even infra, - present minor trade may difficulties in the --,---, 516 F.2d at 639- have a substantial corrosive effect on our se- curity analysis pro- in the future. Thus our security” Throughout opinion, “internal recognition ceeds with the that there security” will refer to threats to “domestic practical logical way no tional within the President’s to differentiate na- of the Government or existence the structure which situations from other situations directly organi- originate from domestic powers. affairs agents acting of nor are neither zations which not, See also notes 108 & 203 infra. This does 614

that, circumstances, exigent absent all legitimate to conduct national dent se wiretaps, electronic surveillance is un curity warrantless since we do not address and therefore unconstitution scope power44 reasonable substantive of that or al, holding need not sweep upon our that exact standards which war Rather, . Instead, issue.45 we rants should we broadly. today only merely hold a must be warrant obtained before that legitimate that whatever decide a wiretap is installed on or domestic power, scope of that and whatever ganization agent neither of which must met justify be to standard acting in collaboration with for nor of a wiretap, intrusion the decision power, even if the eign surveillance the scope to whether has as been exceed presidential under installed directive43 in or the ed standard has been met is to be foreign intelligence name gather of by a neutral made disinterested protection of ing for the national securi magistrate judge or rather than We ty. do not reach this conclusion official engaged investiga in or lightly sensitivity without im to the tory prosecutorial duties, or or the port controversiality at least prob of the in subject where of situations of security national the sur lem wiretapping. organization veillance is a compels domestic But Constitution us do to no agent is not the of event, acting or any less. In our collabora decision does not foreign way power.46 tion any ability limit of the Presi- exception militating against prior judicial to the course, oversight if an mean foreign security surveillance, recognized, infra, lines no requirement were see U.S.App.D.C. foreign -,---, area. at affairs within be drawn could 639-640, 641-648, poli- strong although example, this function there has been dele- For gated Attorney exceptions, allowing any see General against such rather than to cies Secretary infra, at---, infra, State. See U.S.App.D.C. F.2d also at---, U.S.App.D.C. 516 F.2d at 643-644. possible war- to allow it would regard- foreign agents surveillance rantless particular, 44. we do not importance the information decide whether it less proper would have been judge post for a long review to as hoc sought, autho- so reasonable, rize a surveillance under the while to circumstances of found case, this or whether or- a domestic whenever authorized surveil- requiring a warrant lance should have regardless wiretapped, scope been of a different ganization is actually security duration than that foreign enormity threat conducted. See note 274 infra. provoked. actions its infra, U.S.App.D.C. See 45. indication that the President There is no ---, 516 F.2d at 655-659. knowledge or had of this authorized himself However, appellees assert surveillance. powers properly dele- constitutional Section 2511 his of Title III of the Omnibus Attorney “[ejach gated to the General since Crime Control and Safe Streets Act of department (1970), is and must be Presi- of a U.S.C. §§ head 2510-2520 declares depart- “[ejxcept ego in the matters of alter specifically dent’s otherwise provided in required by chapter III],” law to the President is interception [Title where ment “any authority.” Memorandum of Points wire or illegal, oral exercise communication” is Support specifies § 2520 of III Authorities Defendants’ Title broad remedial relief, Summary Judgment Op- including liquidated damages, Cross-Motion for sur- veillance position to Plaintiffs’ Motion for Partial Sum- conducted “in violation chap- of this n.10, However, mary Judgment, ter.” 2511(3), at 15 v. § Zweibon the so-called “na- security Mitchell, D.D.C., (brief proviso” tional any III, Civil No. 2025-71 filed of Title disclaims 1973), Myers congressional quoting intent, April alia, v. United inter to “limit 52, 133, power 47 S.Ct. 71 L.Ed. constitutional of the President take do not doubt the President’s We measures necessary as he deems protect delegate many power against execution of his the Nation potential actual or responsible attack or subordinate officials. other functions hostile foreign power, acts of a See, Shaughnessy, supra intelligence obtain Knauff information However, we deemed essential States, U.S. at of the United that, light protect of the fact that the it curious find informa- complexity specialized intelligence nature asserted foreign policy activities.” generally infra, factor matters is advanced as a necessary as a con security surveillances A. as responsibilities his Com comitant Fourth engaging in our Before of the Armed mander-in-Chief Forces49 dispose of analysis, we must Amendment the nation.50 Executive of Chief prece alleged based on argument, an the Keith sure, fact dent, implicitly has been advanced To with powers President’s by as found appel as well Court by several courts47 insufficient to affairs domestic argument ef to respect this case.48 This in in lees the warrant re exception to prior prac presidential justify asserts fect aspects of the domestic holdings when Supreme Court quirement and several tice involved, yet security preeminent the President’s national establish procedures what specify af to the conduct of over refused power security if the national power in turn estab entailed fairs, this would foreign powe origin its authority of the Pres had inherent threat lishes in re- any difference engage in national indicates warrantless ident rs,51 at---, Moreover, Keith, White, Thus, speaking Justice 516 F.2d at 659-673. al- himself, any argued though presump- electronic that Title III surveillance is should be by tively analyzed determining compli- unlawful if instituted first whether without the sur- III, encompassed by was one ance with strictures of Title veillance the exact surveil- comprehension language security proviso; of the lance within the national con- national not, security proviso cluding any that it was he avoided would not be consti- rendered unlaw- analysis. develop fully ful Title III. As we will tutional See note 222 infra. more This is opinion, infra, U.S.App. Judge approach. See, later in our see effect McGowan’s e. 239, 244, opinion He, too, g., notes McGowan at n.12. D.C. at---& 516 F.2d 239, 244, proviso by approach determining first at 664-667 & notes the national security proviso encompass whether a surveillance falls was fashioned to within its exact | any presidential although language. statutory And surveillance which the broad the Su- preme might language subsequently respect makes no distinction with hold to be subjects (as opposed immune from the Fourth of such surveillance Amendment’s war- requirement; Congress purpose) Judge pains simply rant to its was at McGowan would power statutory language “to limit disturb as construe to exclude all the Presi- dent Keith, even if under “noncollaborators” the President could Constitution.” constitutionally 407 U.S. at institute surveillance on S.Ct. at them 2130. See also, g., compliance (Senate require- Report e. without with the warrant 240 infra broadly referring proviso ment of the Fourth encompassing Amendment. Yet the Su- Keith, presidential preme rejecting foreign affairs”). “conduct of Court in the methodolo- Since, White, us, gy recognized on the record of Justice before if the surveillance headquarters of JDL security President could conduct warrantless national installed for national reasons, permissibly arguably it at least under falls with- Constitution, language proviso; 2511(3) in the framers of § thus did not we must analyze interpose statutory first whether a intend to barriers to the sur- Thus, veillance instituted under under these surveillance. case, the facts of our circumstances subject judicial prior constitutionally scrutiny. required is Keith, if no warrant is See also apply. why, 407 U.S. at III cannot That Title Keith, as in 2125. Whatev- disagreement initially Judge Wilkey er we we must undertake the have with consti- analysis interpretation 2511(3), compare on the infra, tutional which follows. § U.S.App.D.C. at---, 516 F.2d infra, U.S.App.D.C. 47. See cases cited U.S.App. Wilkey opinion at 659-673 with at---, at 516 F.2d 636-641. See also at---, D.C. 516 F.2d at we Court, United States v. United Cir., District States accepting that, principle are in accord in at F.2d 658-659 minimum, legislative history and lan- 21-32; generally appellees guage brief for at congressional of that 48. See section reflect a any Memorandum of Points and Authorities intent that case in which no warrant is Support of Defendants’ Cross-Motion for Sum- constitutionally mandated, Congress did Opposition mary Judgment and to Plaintiffs’ impose statutory require- intend to Summary Judgment, Indeed, for Partial at 13- Motion although premise ques- ment. Mitchell, supra tionable, in Zweibon v. note 43. infra, Congress see appar- note 228 ently believed it would be unconstitutional U.S.Const., II, § Art. 2. power restrict gage inherent Executive to en- Id. 1.§ See, warrantless surveillance. -, U.S.App.D.C. - infra, infra, 51. See & notes Supreme ceived approval, Court foreign aggression; they do not there can be no doubt that an unconsti preordain procedures with which the practice, tutional no matter how inveter comply President must in exercising that ate, cannot condoned authority. We will therefore discuss Indeed, judiciary.54 the Supreme Court precedents these why elaborate they merely in Keith the similarly treated are not themselves conclusive proc long-standing practice Executive of con question; in a later section of edural52 ducting surveillance “in vitally cases af we will scrutinize them to opinion fecting this the domestic security”55 as indic whether based on determine ative of the unchallenged Executive which would be frustrated if any policies power to obtain intelligence information, requirement apply a warrant were to as determinative of the proper proce category foreign security surveil dures to be followed in doing.56 so Even lances. important, more this practice 1. must be considered in its historical con text, Admittedly, Presidents since which why illustrates 30-year policy Roosevelt have authorized their of presidentially Franklin directed electron- III of the Act (1969); requirement lance—Title Crime Control referring warrant 52. 1968, 319, Rutgers imply 23 L.Rev. 337-339 mean to we do not “procedural,” Note, Security Wiretap”: aspects The “National Presi- important substantive not have does Prerogative Responsibility, Rather, employ dential or Judicial purposes. the term we 888, (1972); scope 45 S.Cal.L.Rev. 902-905 Com- Execu existence and contrast ment, Privacy Applica- and Political Freedom: gather safe information with the power to tive guards power tion of the Fourth Amendment to “National to be pursuant to which Security” Investigations, However, important 17 U.C.L.A.L.Rev. to note it is exercised. 1205, (1970). 1217-1224 that, standards to the detailed contrast regulating III for procedures in Title elaborated See, Committee for Public Education infra, 170 U.S. proceeding, see the App.D.C. 756, 792, 2955, Nyquist, 413 v. U.S. 93 S.Ct. 37 668-669, at -, re F.2d at 516 (1973), quoting L.Ed.2d 948 Walz v. Tax many was for quirement itself of a warrant Comm’n, 664, 678, 1409, 397 U.S. 90 S.Ct. 25 congressional de closely years associated Wade, (1970); L.Ed.2d 697 Roe v. 410 U.S. powers the Exec the substantive bates 113, 705, (1973); 93 S.Ct. 35 L.Ed.2d 147 Fur from national derived evidence to use utive security 238, 2726, Georgia, 408 U.S. 92 man v. S.Ct. 33 prosecutions, in criminal surveillance (1972); States, L.Ed.2d 346 Katz v. United 389 240, infra, note U.S.App.D.C. at - & see 170 352-353, 507, 347, U.S. (1967); Reynolds 88 S.Ct. 19 L.Ed.2d 576 note 240. at 664-667 & Sims, 533, 579- Keith, A; supra Appendix 407 53. See (1964). 12 L.Ed.2d 506 10-11, S.Ct. 2125. nn. & U.S. 310-311 Brownell, Security Although Public generally The President Roosevelt’s memoran- Tapping, 195- “persons 39 Cornell dum authorized L.Q. surveillance of and Wire sus- pected Donnelly, activities,” (1954); Comments and Caveats of subversive the thrust of Controversy, Tapping 63 Yale L.J. the memorandum is to authorize Wire on the surveillance Wiretapping: (1954); Gasque, “foreign” A would be considered 799-800 Legislation Supreme History opinion. surveillance under the of Federal Keith The first Decisions, presidential condoning 600-601 directive S.C.L.Rev. surveillance in Court (1963); vitally Tapping, affecting Rogers, security” Wire “cases The Case for domestic years (1954); Appendix came six Theoharis & later. See 794-797 A. L.J. Yale Security” Justification Meyer, “National Compare n.10, 407 U.S. at 310-311 & Eavesdropping: Ex- An Elusive Electronic S.Ct. at 2133-2134 with id. at (1968); Wayne 753-768 ception, L.Rev. 2135-2136. S.Ct. Note, Wiretapping and Electronic Surveil- decisions, they never bearing of these has no substantial received surveillance ic congressional approval.60 Nevertheless, of warrantless practice whether Department the Justice construed the is now constitutional. prohibit decisions not to wire Nardone one must problem, appreciate To Attorney itself. As one General tapping Court’s unfortu remember explained: v. United decision in Olmstead nate The question soon arose as to wheth 438, 48 er mere interception by federal agents dissents, vigorous Over L.Ed. of messages was forbidden by Section Brandéis cele including the renowned 605. The Attorney General the Olm personal privacy, [Jackson] bration at that time took the view that what that, an actual held absent stead the law prohibited was both intercep is no search trespass, there physical tion and divulgence, and that mere re Fourth meaning within port of the intercepted message to Thus, from 1928 until Amendment. public officials by FBI or other federal dispute no 1967,57 simply there agents did not constitute divulgence.61 inapplicable was Amendment Fourth surveil non-trespassory electronic to Attorney General Jackson announced in lance; reason that war it was for this 1940 that the Department Justice However, required. not rants discontinue wiretapping; he reversed decision, Con shortly after the Olmstead position, however, two later, months 605 of the Federal Section enacted gress receiving after a confidential memoran- 1934,58 Act which Communications dum from Roosevelt, President the first provided presidential such directive in the corpus precedents cited as by the autho- authorized being person no rizing warrantless any wiretapping. communica- In ef- intercept shall sender fect, the memorandum was publish the exist- divulge actually a reaction statutory substance, purport, ef- construction contents, de- ence, Nardone, cision of not an intercepted assertion of meaning of fect, or presidential immunity from person. any constitution- to communication al Accepting constraints. the Nardone interpreted prohibit 605 was Section holding that evidence obtained through evidence of both introduction into wiretaps could not be introduced in crim- overheard of conversations contents prosecutions, inal President Roosevelt by law installed enforcement wiretaps on officials, nevertheless accept did not the view that States, v. United see Nardone prohibited statute the wiretapping 275, 379, 58 82 L.Ed. 314 U.S. S.Ct. itself, since he discounted the possibility of such overhear and the fruits (1937), dictum in Nardone was intend- States, United see Nardone v. ings, ed “to apply grave matters involving 266, 338, 84 L.Ed. 307 60 S.Ct. the defense of the nation.” (1939).59 The Roosevelt memorandum clearly solely related were subse- Although “wiretapping” which, various bills unlike “bugging,” generally introduced avoid the effects was quently accom- also, Supreme decided Katz v. Court 59. Coplon, In 1967 See 57. United States v. Cir., supra (1950), denied, which overruled note 185 F.2d 629 cert. 342 U.S. us that “the Fourth (1952). and informed Olmstead 72 S.Ct. 96 L.Ed. 688 places.” protects people, not Amendment Legitimate at 511. relatively comprehensive 60. For a picture of privacy expectations personal were there- legislative area, generally efforts in this see be shielded “the uninvited ear” fore to Meyer, supra Theoharis & note 53. See also eye.” intruding Id. at as “the as well supra 53; Gasque, Rogers, supra note note 53. VI, Brownell, 48 Stat. 1103 § Ch. Title supra note at 197. See also amended, (1934), Donnelly, supra § 47 U.S.C. as at 800-801. trespass.62 infrequently physical highly circumscribed without plished device Roosev employed memorandum nor those under President neither his Thus scope Truman Johnson63 ac to its extensive under Presi elt65 Presidents require mag the warrant Truman and Johnson and its tually discussed dents an explicitly had rendered asserted constitu ment, Olmstead nitude since inapposite where under Nixon exception Presidents Amendment tional Fourth we surveillance was in Ford.66 Nor need maintain that non-trespassory Indeed, presumably because in Olmstead had volved. if the generally trespassory applicable of a the Fourth Amendment bugging held subject surveillance, non-trespassory prior thus Fourth nature Katz, even before strictures would not claimed a con Amendment Presidents pre-Katz exception Johnson’s memoran from the warrant President stitutional security surveillance on national We recount the back requirement. dum practice only mechani this Executive recognized ground of “[utilization argument electronic devices to overhear non- should be cal refute is an even more telephone conversations as an affirmative statement viewed wiretapping], problem prior they difficult Presidents were not sub [than procedure raises substantial and unresolved ject to the warrant interpreta of Constitutional questions Amendment when acted for Fourth purposes. Indeed, tion.” are no similar memoranda

there advocating Presidents these unwarranted how recount We need trespasses, to which the Fourth physical elec authorized presidentially practice a from grown has surveillance Amendment would have applied.67 tronic To description “bugging” expansion and “wire- 62. For 66. For details of the of surveillance see, Westin, devices, g., Privacy tapping” e. A. from activities the Roosevelt to the Johnson (Atheneum 1967). Administration, see, g., Meyer, 73-78 and Freedom e. Theoharis & 53; Comment, supra supra note note Appendix A. 63. See U.C.L.A.L.Rev. at 1221-1224. As indicated in text, both Presidents to hold office since the through Attorneys Katz decision have their Apparently despite recognition Id. that possible General advocated the broadest ex- trespassory practice of warrantless the nation- ception requirement to the warrant when in- might al surveillance be unconstitu- ternal or national matters are at issue. tional, engaged in it was law enforcement See, g., Keith, e. brief for the United States during the officials Johnson Administration. 2; supra Attorney Statement of General (memorandum Appendix Acting A See Security B. William Saxbe on National Elec- Attorney General Clark to all United States tronic Surveillance and S.2820 Before the Sub- Attorneys). Procedures, committee Criminal Laws and (Justice Department release); Oct. recog- example, Roosevelt President For Post, 19, 1975, Washington May col. 1 ordinary normal circum- and that “under nized (Ford administration asserts that federal employed stances,” wiretapping not be should agents right to break into citizen’s home to lead to abuse bound is almost “it because without a warrant and search for items that entry Yet, impending rights.” faced with civil might foreign espionage be used in or intelli- II, recognized need to he War World into cases). gence sabotage concerning and information obtain Nevertheless, likely activities. 67. Nor is it that column” court “fifth would have other Attorney that, accepted argument “limit to General in the instructed name of he security, a mini- investigations to so conducted national officials of these the Executive possible to insofar as them could break and to limit Branch enter a home mum and and rummage through Appendix papers It should also A. books See and without aliens.” that, prior judicial approval. fact that in addition For the Fourth noted appli- specifically propounded was not considered Amendment was Amendment and Fourth non-trespassory memory Wood, surveillance ratified with the of Wilkes v. cable (1763), Eng.Rep. Carring- less than time, to have and were considered Entick v. aliens See, ton, rights. Eng.Rep. (1765), in mind. Amendment Fourth full 769-772, generally Boyd Eisentrager, 339 U.S. v. United Johnson (1950). (1886) (dis- See also 6 S.Ct. 94 L.Ed. L.Ed. 746 cussing English and American infra. abuses note 105 security surveillances is com- sure, its the Executive Branch and Supreme prised of Court decisions not agencies had become enforcement law the Fourth implicating Amendment but conducting non-trespasso- accustomed relating to the President’s powers broad unhampered by ry electronic the conduct of over affairs. A scrutiny; was therefore prior survey brief of these very cases will re- argue constitutional expedient they may be roughly veal divided once Katz tres- exception eliminated the overlapping (1) into three subclasses: distinction passory/non-trespassory finding “political” that our cases rela- However, Amendment doctrine. Fourth foreign governments with tions are non- ignore expedien- we the fact if even (2) justiciable; cases recognizing no soil cy is in which to root a constitu- has certain powers President “inherent” doctrine, we must still stress tional affairs field which are support for a constitutional ex- fact upon congressional dependent autho- cannot be simply derived from ception rization; (3) cases recognizing an ev- solely actions that concerned identiary privilege shielding information statutory matters whose evolution pertaining military diplomatic se- on considerations based other than proper open Amendment from disclosure in Fourth court. It crets effectuating guarantees. its means despite be seen that broad dicta will cases, these none stands for some the Executive proposition Branch is au- precedential type second The warrantless justify immune from constitutional strictures relied on thority Id. at 817-818. Lord Camden Fourth Amend- considered sedi- led to enactment might Landynski, “prove ment). and Sei- libel an “evil” which fatal J. Search tious See also destroy liberty, (1966); Government and introduce 28-48 N. zure 818; anarchy,” Eng.Rep. century History 18th Lasson, Development The England, such libels were considered substan- to the U. S. Constitution Amendment Fourth security. Against threats to national tial Boyd Court indicated 43-78 background, it understandable that Execu- particularly been ac- would have Founders country any prerog- in this did not assert tives Carrington, “this monument quainted rummage through books, papers, ative * * * freedom, ulti- English true and effects of dissidents in and other the United expression law.” of constitutional mate based an Executive States determination 626, Carrington at 530. was an 6 S.Ct. at U.S. they posed security. a threat to national trespass occasioned when the Earl of in action However, why pre- it is difficult to see such a Secretary Halifax, of State and Lord a British rogative should not if the exist Executive Council, personal Privy sent his messen- the of permitted non-trespasso- is to conduct Branch purely executive warrant of a gers, color under ry surveillance without electronic a warrant. name, King’s by to in- in the Halifax issued Katz rendered such once surveillance sub- For political and of Entick other studies strictures, the vade ject to Fourth Amendment there papers could be of which in search exception dissidents to reason allow an was no requirement proof non-trespassory of libel. the crime seditious in of used trespassory Although times from the time of and but not in “at different seizures searches time, and seizures. Given the searches fact present the like this to Revolution the trespassory searches warrantless were the against plaintiff, with issued warrants abuses core” Executive which the “hard granted frequently by the Secre- been have designed proscribe, was Amendment to Fourth 810, State,” Eng.Rep. 95 Lord taries Keith, 2, 313, see, g., supra note 407 U.S. at e. unequivocally repudiated practice: Camden abrogated and the fact that Katz 92 S.Ct. trespassory/non-trespassory a via- line as safely say categorizing can there is no law in [W]e this ble criterion Executive actions country justify purposes, the defendants in what Amendment we believe it for Fourth done; was, spirit keeping purpose if there would de- in with and is more * * stroy society all the comforts of *. It Fourth Amendment close areas of of the assertedly guilt poverty preroga- have been the or must of those nonreviewable Executive upon whom warrants such have been than in exe- to retreat doctrinal areas tive rather cuted, or that deterred hindered them from been settled since the which have Amendment contending against power Secretary promulgated. generally of a See first Treasury, State the Solicitor at---, supra, U.S.App.D.C. 170 516 have'passed warrants could never 611-614; infra, F.2d at 170 at---, till time. lawful this F.2d 628—633. See also however, not, be divorced from its foreign nation’s af- factu of the conduct Belmont, Pink, Indeed, discussing predicates. al after these fairs. Oetjen basically were all separate line of “act of state” scrutinize will we cases cases,68and the sole subjected presidential clearly the Ex- decision has which cases given that was conclusive force system to the normal con Branch ecutive who balances, was to be checks and cerned considered the constitutional sovereign of foreign power. lawful clearly indicated the limited has which legitimate sovereign Once justify President to actions deter ability mined, act of state pre doctrine United States on the basis taken acts from being his cludes reexamined abroad relations with conditions by the courts another sovereign state. foreign powers. Oetjen, In which involved the paradigmatic The case of the “action, Mexico, of the legitimate precedents subclass concerning first government Mexican when dealing with President’s conduct of affairs citizen,” a Mexican 246 U.S. at Belmont, v. States United 301 U.S. 311, this disposed doctrine S.Ct. 324, 57 (1937), S.Ct. L.Ed. 1134 However, case.69 Pink, Belmont and appellees cite for the propo which broad involved an Executive agreement that “the sition conduct of rela accepting assignment to the United tions was committed by the Constitution of Russia’s States claims proper political departments pursuant ty nationalized to a decree and the government, propriety of what government, objections the Russian may be done the exercise of polit raised that the nationalization violated power subject ical in [is] our Constitution. Although acknowledg quiry or decision.” Id. at 57 S.Ct. at ing power the Executive’s negotiate quoted appellees brief for at 23. agreement, and finalize the the Court Co., Oetjen v. Central Leather also nevertheless addressed the constitutional 297, 302, 38 S.Ct. 62 L.Ed. U.S. validity of the Soviet expropriation. (1918); Pink, United States Belmont Court held that the Consti 203, 222-223, 229, tution has no effect, extraterritorial ex language This respect should cept L.Ed. to United States citi- Court, doctrine, States v. United States District which rests on “considerations of in- supra note 444 F.2d at 665. comity expediency. permit ternational To validity sovereign the acts of one State essentially 68. The act of state doctrine is perhaps reexamined condemned provides doctrine which that the acts of a for- certainly ‘imperil of another would the courts eign sovereign subject are not review the governments the amicable relations between sovereign pre- courts of another and must be * * * peace of nations.’ and vex remedy See, to be valid. sumed Hernandez, Underhill v. the former owner the confiscat- [of 250, 252, * * * ed must be found hides] in the (1897); L.Ed. 456 Co., Ricaud v. American Metal through diplomatic courts of Mexico or agencies the 304, 309, 312, 246 U.S. 38 S.Ct. 62 L.Ed. political department of the of our (1918); City First National 733 Bank v. Banco 304, 246 U.S. at Government.” 38 at S.Ct. Cuba, 759, 763, de 406 Nacional U.S. 92 S.Ct. 1808, (1972); L.Ed.2d 466 32 H. Steiner & D. Legal Vagts, Transnational Problems 587-588 It should be noted talking in of the However, (1968). declining juris- rather than “political” branches of the Oetjen Government diction, supposed ju- is a court to exercise its referring was Legislative to both the Executive and the merits, and decide a risdiction case on the aft- 302, Branches. See id. at 38 S.Ct. according foreign er act an irrebuttable Indeed, most of the containing cases See, presumption legality. of Banco Na- concerning presidential power broad dicta over Sabbatino, 398, de v. cional Cuba 376 U.S. foreign the conduct of affairs involved Execu- 471-472, 923, 84 S.Ct. 11 L.Ed.2d 804 pursuant congressional tive action autho- n Oetjen replevin infra, 69. The case was a suit in rization. a 170 consignment large 70, deciding of hides. In at---& 516 F.2d at 621-623 emphasized case the Court the act of state & note 70.

621 zens, 301 U.S. at 57 S.Ct. and in Court held Pink the the Fifth * * * [H]e, Congress, not has not Amendment does bar federal knowing the of con- opportunity better government giving priority from to its prevail in coun- ditions own claims and those of its nationals as in true tries, especially is this time opposed to those of foreign creditors. his confidential He has war. of at U.S. S.Ct. 552. Thus He has his information. of sources viewed, language quoted from these diplomatic, con- form in the agents cases can be seen to be of limited value Secrecy officials. other sular when court is faced a the constitu- with gathered by information respect of validity tional of actions undertaken do- necessary, and the highly may be them mestically, even if in furtherance productive disclosure premature powers. President’s affairs results. harmful paradigmatic case of second 219, quoted in 315-320, at 57 S.Ct. Id. precedents subclass of concerning the Cir., Butenko, 3 States of foreign President’s conduct affairs is denied, n.36, sub nom. cert. F.2d Curtiss-Wright United States v. Export 881, 95 419 U.S. v. United Ivanov Corp., 299 U.S. (1974). Al L.Ed.2d 121 S.Ct. (1936), that, L.Ed. which held be- certainly supports Curtiss-Wright though they are of

cause origin different pow the President’s contention nature, the government’s federal domes- specifically to those limited are ers foreign powers tic and are of very Constitution, it in- is enumerated scope: different of how those question apposite The broad statement that the federal with the to be reconciled powers government can exercise no powers Amendment. the Fourth mandate except those specifically enumerated in Curtiss-Wright itself Court as the For Constitution, and such implied governmen every other “like recognized, powers as are necessary and proper to power plenary President’s power, [the tal carry into effect the pow- enumerated exercised must be foreign relations] over ers, categorically is true in re- provi applicable subordination * * * spect of our internal affairs. Constitition.” sions added). (emphasis 320, 57 S.Ct. remembered that must Moreover, it shown, recognized a core we have only, as although the Not depend power external affairs over power presidential federal inherent authorization, see different legislative essential character origin upon ent affairs, but actually presented internal id., over question constitutionality the exercise of Curtiss-Wright participation power In this limited. significantly delegation congressional power realm, impor- its President, is, with con whether external vast tant, mani- delicate and the Presi complicated, granting resolution gressional has ship alone the President arms authority prohibit problems, fold dent rep- as a or listen vest speak armed conflict area of power to an ments * ** nation. discretion.70 an excess resentative himed Youngstown Sheet & Tube Co. v. Saw class of cases that we find the broadest recent * * yer, presidential power statements *. (1952) (concurring opinion), Curtiss-Wright 1153 United L.Ed. Mr. States v. Export Corp., 304, propounded 216, 221, Jackson Justice his well known 299 U.S. 255], S.Ct. [57 81 L.Ed. involved, categorizing question schema situations in which not the of the President’s constitutionality power congressional the of Executive action is to act authority, without challenged. presidential question He observed right but the of his to act under and power Congress.” is at a maximum when action in is taken accord with an Act of 343 U.S. pursuant express congressional n.2, implied to at 635-636 72 S.Ct. authorization, he noted that and “is in this 622 engage carriers to the need for se citizen as to overseas and Indeed, the dicta transportation, foreign uttered in the air Mr. were Justice information crecy of Jackson, writing of “con for a sharply divided the reasonableness context Court, penned which is to be extensive legislation passage gressional often been negotiation quoted and has cited or through which effective made power the domes the President’s Finally, supporting unlike to en Id. inquiry.” conducted in warrantless gage seizures searches tic United See v. case, legislation Curtiss surveillance. States the Cir., 418, Brown, to affect a situa 484 F.2d (1973); 5 426 “intended Wright was 321, Clay, Cir., territory,” id. at 57 v. 5 foreign United States 430 F.2d ain (1970) (alternative holding), re 221; 165, Curtiss-Wright, like all oth 171 S.Ct. 698, 403 cases, grounds, U.S. 91 did on other simply versed power” “presidential er 2068, 29 L.Ed.2d (1971); in which the 810 the manner S.Ct. address not Smith, C.D.Cal., v. powers are to 321 foreign F.Supp. affairs States President’s 424, (dictum); (1971) the Fourth 426 with United States accommodated be D.N.J., Butenko, 66, v. 318 F.Supp. dictates.71 72 Amendment’s Cir., affirmed, 3 (1970), 593, Lines, Air Inc. v. Chicago & Southern denied, 881, 419 U.S. 95 cert. Corp., Steamship

Waterman 42 L.Ed.2d Mr. Justice Jack (1948), L.Ed. 103, 68 S.Ct. proclaimed: son recognized that President similarly right powers President, certain his own both as Commander-in- possesses foreign affairs.72 In con respect organ and as Nation’s Chief with provision affairs, review has struing the available intelli- foreign Act, reports whose not Aeronautics U.S.C. services gence Civil 646,73 published review of those to be ought authorize not § orders, subject approval by which are be intolerable world. It would President, concerning applications courts, without relevant informa- exegesis 71. For an excellent the Curtiss- 72. See also Cafeteria & Restaurant Workers light Wright opinion in the text of the Con- McElroy, Local history adoption, of its see (1961), stitution recognized 6 L.Ed.2d 1230 Butenko, supra generally United States v. note that, as Commander-in-Chief of the Armed (Gibbons, J., F.2d at 630-637 dissent- Forces, the President invested with broad Gibbons, Judge ing). faced the assertion powers regulate military access to installa- the President is immune from the that requirement Although majority tions. five-Justice intelligence affairs when that case sustained the determination a na- sought, carefully traced information manner gun factory’s security val officer that a cook at prerogatives in which the the Brit- factory’s cafeteria must be excluded as a kings dispersed among the several risk, ish it then addressed what it con- government, of our branches concluded separate question sidered such be the whether support there is no historical for the con- preceded by had to a determination subject that the is not President tention traditional balances implicated. Although opportunity notice and an although to be heard. And system of constitutional checks and majority concluded that Fifth merely because relations are transgressed by Amendment was the sum- majority of the Bu- mary determination under the circumstances nominally accepted prop- also tenko court case, important of that it is to note that the that, although “expansive language osition of decision was based an assessment of what [Curtiss-Wright provides support ] for the required; the Fifth Amendment not the Court did that the President is contention authorized to presume legitimate that the existence of unencumbered Fourth Amendment act requirements presidential power inquiry itself foreclosed an prior judicial approval imple- in which it into the manner was to dealing probable cause when he is with nation- mented. * * * security matters, customary al Fourth abandoned,” 23, 1938, X, 73. Act of June ch. title analysis is Amendment to be [not] (now § (1970)). 52 Stat. 49 U.S.C. § reasoning 494 F.2d at its proposition. inconsistent with that infra, at-& at 639-641 & note F.2d authorization,” see statutory under ers tion, perhaps nullify review and should n.2, 72 S.Ct. he warned: id. at the Executive in- of taken on actions properly held Nor secret. formation could the Court doctrine [N]o sit in camera in to be can courts order more seem to me promulgate executive But into confidences. taken alarming than that Pres- sinister require courts could full even if disclo- affairs foreign of conduct whose ident very of sure, nature de- executive uncontrolled, often largely is so foreign policy political, is as cisions unknown, enlarge vastly can is even wholly Such decisions are judicial. not affairs the internal mastery over his by our po- Constitution to confided his own commitment country by departments the government, litical to some forces armed Nation’s Legislative. are They venture. foreign delicate, complex, and involve el- large il. ject directly ements whose which the should tude, facilities nor responsibility and which the domain ^[*] S{! They are ^[*] has welfare be undertaken of prophecy. judicial responsible long Judiciary has decisions political power been held to intrusion advance or They only by of a neither or inquiry. belong kind are and imper- people those apti- sub- doubtful was proved upon Id. action internal volved “conduct” based the President’s assertion that in every wiretap such an involving foreign affairs, that the Justice of foreign policy armed expansion S.Ct. which are claim in at 873. conflict, situation, would have affairs, inevitably Youngstown powers is affected. Since merely direst it over ap- his in- Similarly, we see no reason at 436. U.S. to take Waterman dicta as a Su preme Court statement issue important recognize It is touches affairs is to be im declaration made the context of judicial review, munized particular determining congressional pur intent for there ly strong when countervailing judicial poses construing review constitutional interests that judi merit Act; of the Civil provisions Aeronautics Indeed, protection. cial indeed, actual Waterman, decision in recognized has itself it was on statutory as based construc tion, considerably has been are sweeping eroded since statements to the [t]here thus 1948.74 We do not find that all questions the above effect touching for as justiciability dicta conclusive relations are eign political questions. totthe * * * actions when a Yet presidential constitution error suppose is at issue. provision every al Even or controversy Justice case hesitate, did years Jackson beyond four touches relations lies authoring cognizance. judicial after Waterman Our opinion, cases in this seem invariably to hold President Truman’s field seizure do show a dis criminating mills unconstitutional, analysis steel of the particular mestic de spite necessity question posed, its claimed in terms preserva of'the history management by political of national its security during wartime. branches, Youngstown of its susceptibility judi & Sheet Tube v. Co. handling light Sawyer, cial its nature (1952) posture specific case, (concurring opinion). 96 L.Ed. 1153 possible consequences Dismissing Waterman example presidential definition of pow- the “wide action. generally Revisited, Air World

74. See Pan American Waterman Doctrine Geo.L.J. CAB, ways, 167- Inc. Miller, (1968); 491-493 F.2d 624 211, Carr, 186, 82 S.Ct. the 369 U.S.

Baker v. Court has itself autho Keith rized camera (1962).75 As the 691, L.Ed.2d 663 7 determinations a realized, validity the whether decision asserted Court Executive privilege respect constitutionally be with may privacy evidence citizen’s which might re military veal “political” question not a simi diplomatic invaded secrets.77 re More questions as who should particularly, the Supreme lar already air who is the has route or overseas directed ceive an lower courts to as country; sess the foreign of a sovereign legality under the lawful Fourth a providing question of Amendment of rather, is a foreign security wiretaps, excess, a task given Executive has no bulwark indication whatever Amendment deliber Fourth the which such a task is nonjusticiable.78 officials of neutral ately'allocated Finally, to the extent Executive determi Moreover, as we will judiciary.76 nations area of foreign relations below, we do not extensively elaborate judicial merit deference or are based on sit why a court cannot understand confidential sensitive information, enough information camera to receive could judiciary fashion the standard of legitimacy of determine cause to probable account for lack of to conduct authorization for requests part on its expertise and to accommodate seriously No one surveillance. electronic need maintain such confidences as in camera degree some contends identity of agents Government of the same information review judicial underlying an the context reasons Executive de impermissible in particular foreign pursue polic a hoc criminal prosecution based on post cision a surveillance, y.79 derived from such evidence Court, Carr, recognizing 186, there Baker v. 212-213, 369 U.S.

75. The Baker 82 S.Ct. 691, concept for- (1962) of what 7 (footnotes refined L.Ed.2d a more 663 must be omitted). also, “political” g., Aptheker to be Secretary e. eign activities are so State, v. affairs 500, 1659, nonjusticiable, continued: 378 U.S. 84 S.Ct. 12 L.Ed.2d 992 (1964). directly “foreign” And the more ac foreign governments recognition of While protected tions affect domestic activities by judicial strongly defies treatment so Rights, urgent the Bill of the more is the need recognition a state executive without judicial oversight, infra, see 170 U.S.App. republic “a of whose exist- been called has at---,---, D.C. 516 F.2d judiciary nothing,” and the know we ence 625-627, 633-636, particularly at when the ordinarily as to which follows executive have not actions been Congress' authorized sovereignty disputed territo- over has nation public permit and are scrutiny so as to informed sovereignty political- over an area is ry, once through political and review proc declared, may courts ex- ly determined Horowitz, Karst & ess. Cf. Presidential Pre resulting decide inde- status and amine rogative Review, and Judicial 22 U.C.L.A.L. applies a statute to that pendently whether 47, Rev. 59 belligerency Similarly, recognition of area. responsibility, if executive but is an abroad supra; 76. See note 36 U.S.App.D.C. 170 proclamations short fall the executive 96, at-& note 516 F.2d at 633 — 634 & note answer, construe them explicit court 96. example, seeking, to determine whether ,170 infra, at-, U.S.App.D.C. 77. See 516 F.2d designed is such that statutes situation at 625-626. neutrality have become American to assure See, supra g., Alderman v. United 78. e. Friends, 1, operative. The Three 166 U.S. Indeed, 14; supra. notes 14 & 37 even note again, 63, though it is the executive Still States, supra language of Katz v. United person’s repre- status as determines 54, supra, U.S.App.D.C. quoted 170 note parte government, Ex aof sentative -, F.2d first 516 indicated Hitz, executive’s state- U.S. possibility surveil- necessary construed where be will ments requirement, exception lance Baiz, jurisdiction, re the court’s determine contemplate appeared to some form of also judicial action in Similar U.S. 403. review such surveillance. recognizedly exec- authoritative of a absence involving Keith, occurs in cases See, supra declaration utive 407 U.S. at immunity 2125; vessels owned 322-323, from seizure of Municipal v. 92 S.Ct. Camara governments. Compare friendly foreign 523, 534-535, Court, U.S. Peru, infra, parte (1967); [63 Ex L.Ed.2d Hoffman, 1014], -, at---, with Mexico L.Ed. 656- 30, 34-35. third and U.S.App.D.C. case of F.2d paradigmatic 'The concerning (1973).80 713, Although 721 precedents of the quoting subclass final foreign affairs Waterman concerning of statement conduct President’s the of decision of recent Executive action nullification in dicta based is found information, see Nixon, 683, 94 U.S. confidential v. 418 on 418 U.S. States United 710, (1974), which 94 3090, 1039 S.Ct. and al L.Ed.2d 41 S.Ct. abundantly that, of evidentiary privilege though was clear if the reaffirmed of an respect legitimacy asserted privilege the Branch with the an in cam without publica- determined whose could be documents of production inspection, inspection such an era military diplomat- or should endanger could ordered,81 the Nixon Court v. be also United States not reiter See ic secrets. 528, 1, 7-11, longstanding judicial position 73 the S.Ct. ated U.S. 345 Reynolds, Sirica, applicability any privilege of v. the is Nixon that (1953); L.Ed. However, evidentiary privilege foreshad discussed in text. clarify was these This later cases Supreme early public when the the fact that it as as owed disclosure avoided; unanimously recognized necessity, is to the President’s which be in Court camera powers, finding judicial inspection gathering intelligence imperative will often be if a undoubtedly judge au is to Lincoln “was fulfill his own obliga- President constitutional that war, during as commander- tions. the [Civil] thorized in-chief States, armies the United of the may possible satisfy It be court, agents to the rebel lines employ enter secret case, from all the circumstances of the respecting information obtain danger there is a reasonable compulsion resources, of the en strength, and movements expose military the evidence will matters (2 92 U.S. emy.” v. United Totten which, in the interest security, of national 105, 106, Otto) also 23 L.Ed. divulged. should not be case, When this is the Reynolds, nn.11- States privilege appro- occasion for the 727 and sources 97 L.Ed. S.Ct. priate, and the jeopardize court should not (1953). In Totten the therein cited privilege which the is meant to by Court of dismissal affirmed Court protect by insisting upon an examination of compensation brought for anof action Claims evidence, by judge alone, even in by allegedly rendered claim services for chambers. under with President a contract intestate ant’s Reynolds, supra United States v. note gathering such information. secret Lincoln 533, quoted U.S. at 73 S.Ct. at approvingly justifying cited as Although case is this Nixon, supra United States v. action, secrecy and thus of Executive need for U.S. at question, 3109. There was no judicial review, avoiding prior necessity of however, the determination reasoning an belies such assertion. Court’s privileged whether was to made information was involved effect, merely determined that the Court In contract court, be the trial which could necessity spying mission of presumably require an showing in camera if secrecy implied covenant of contained necessary to make that determination. The would itself contract constitute on the that suit quoted passage preceded by was warning: any justifying relief: denial breach a Judicial control over the evidence in a case general principle, may a It be stated caprice cannot be abdicated to the of execu- any public policy forbids maintenance go tive officers. Yet we will not so far as to justice, the trial which a court say suit in may automatically that the court require inevitably lead to disclosure complete would judge a claim of disclosure to the before the regards the law itself as con- which matters fidential, privilege accepted will be respecting which it will not case. this to be violated. On the confidence allow principle, 345 U.S. at (emphasis S.Ct. at 533 9— be cannot maintained suits added). principle Reynolds Thus the require a disclosure confidenc- military diplomatic not information confessional, or hus- those between es of band judge, reviewed a trial but that * * greater *. Much rea- and wife judge unnecessarily a trial should not require principle application for the son exists disclosure based on other situations where satisfied, he is for secret services with of contract to cases information, the docu- the existence a con- government, as the tract requested ments should in fact be accorded a kind is itself fact of that privileged status. A pre- similar function of disclosed. venting Executive abuses while accommodat- ing added). legitimate intelligence (2 Otto) (emphasis gathering at 107 92 emphasis needs is of by judge exposure through served a trial course in an mecha- in camera and parte opinions proceeding. ex been reiterated the later nism has undeniably question for the courts to Sawyer, supra, previously Co. v. referred respect decide: to Mr. Justice Jackson’s concurrence, which found that President has consistently Since Court exer- directing order the Secretary Truman’s power to cised the construe and deline- operate to seize and of Commerce most the Legislative claims ate Exec- [of mills, steel order avert a domestic arising under express utive Branches] steel strike that the Presi- nationwide it must follow that the powers, would threaten the believed nation- dent authority interpret has claims with defense, statutory was without or con- al powers alleged to to respect derive basis. posed The case stitutional the powers. from enumerated of inherent question power Executive in 704, at 94 418 U.S. S.Ct. at 3105.82 The form, since the Korean ex- stark conflict judiciary role of the and the propriety of potential consequences the of acerbated scrutiny of documents allegedly strike: any steel pertaining national were also indispensability as of steel a com- procedure in the evident mandated all ponent substantially weapons of the Court: other war materials led the Presi- material is de- subpoenaed the When proposed to believe that the dent work Judge in camera District to the livered stoppage immediately would jeopar- excising arise as questions our national defense dize and that military or basis of the parts of [on governmental seizure of steel mills it lies within privilege] diplomatic necessary order to assure the of that court seek discretion availability continued of steel. and the Special Prosecutor of aid 583, at 72 at 865. Al- S.Ct. con- counsel for in camera President’s though President asserted that he particular of validity sideration excisions, power, the aggregate had inherent under of excision the basis whether powers his constitutional as Com- admissibility relevancy or or [sic] is of the Armed mander-in-Chief Forces or Reynolds, supra, as cases under Executive, as the nation’s Chief Steamship, supra. Waterman catastrophe” the “national avert which n.21, 3111 94 S.Ct. 715 U.S. 418 result from such work stoppage, would n.21.83 582, 584, 863, 72 a majori- see id. S.Ct. the Court did ty of not hesitate to rule survey types This brief that, under the circumstances of the acknowledged, either which cases holding case, the exercise of his power asserted dictum, scope vast was unconstitutional. And although for domain of power in the Youngstown involved question any miscon clarify should relations eign usurpation legislative Executive’s power ex they render ception congressional power without authoriza- or immune judicial review empt tion, analogous problem presented Indeed, there limitations. constitutional attempts the President usurp when graphi of cases series is another judiciary’s traditional and constitu- presiden on limits establishes cally giving prior role of approval tional security is used when power tial seizures that need searches not be extraordinary to invoke talisman aas immediately undertaken due to exigent af domestic conduct of powers circumstances. celebrated de Probably the most fairs. have similar- cases other plethora of A unconsti action holding executive cision limits on constitutional recognized ly Tube Youngstown & Sheet tutional supra. 385, n.12, also 788, See 390-392 & 793-795 & (per curiam), application injunction n.12 jurisdiction denied, also, aid of g., Nuclear Re- e. 404 Committee U.S. 92 S.Ct. Seaborg, 30 L.Ed.2d sponsibility, 191 149 Inc.

627 parte Milligan, Ex powers necessary); (4 U.S. President’s Commander-in- Wall.) 2, (Presi spokesman (1866) as the L.Ed. nation’s Chief impose dent cannot ians, martial law on civil arena of affairs. The thereby suspending indicated that the Sixth Court has “even the war right jury trial, power remove Amendment “where does constitutional safeguarding open and their process limitations the courts essential liber unobstructed”); ties,” Building Harmony, Home & Mitchell v. Loan Assn. v. How.) Blaisdell, 115, 134, (13 U.S. L.Ed. 75 S.Ct. U.S. (1934) L.Ed. under (dictum), (1852) (compensation the Fifth that, despite allegations required would that a Amendment even if newspa per’s “publication property lawfully destroyed private contents of a [the study recounting military keep officers to it history classified from fall cf, decision-making enemy hands); American ing into Reid v. Vietnam Covert, 1, 5, 17, should be policy] restrained because gravely prejudice (1957) (plurality defense 1 L.Ed.2d 1148 in States,” (military terests of United see trial civilian de opinion) Washington unconstitutional, v. Co., States Post abroad pendents 144 since U.S. 326, 327, App.D.C. 446 the 1327, “prohibitions F.2d the Constitution 1328 banc) (per (en curiam), designed to affirmed, apply to all branches of 403 713, 2140, 91 S.Ct. U.S. 29 L.Ed.2d 822 Government National can (1971), the Government had not over by nullified or not be come First Amendment’s presump Executive and the Senate com imposition of prior re bined”); parte Merryman, Ex 17 Fed. straints. See New York Times Co. v. 9487, p. (C.C.Md.1861) No. 144 (Ta Cas. States, 713, 714, United 403 U.S. 91 S.Ct. (President J.) ney, suspend C. cannot 2140, 29 822 (1971) L.Ed.2d (per corpus). writ of habeas But cf. Hiraba curiam);84 cf. United v. Robel, States 258, yashi 81, 92, v. United 320 263, 419, 389 U.S. 420, 88 S.Ct. 19 (1967) (“the 1375, L.Ed.2d phrase (1943) (con 87 L.Ed. 1774 ‘war 63 S.Ct. power’ cannot be invoked as a talismatic Congress and Executive, stitutional incantation to support any exercise of together, to acting order internment of power congressional which can be of Japanese States citizens United ances brought within ambit”). its The Court an try emergency measure). war In refused has also to allow the Executive cases, of these light unqualifiedly ignore constitutional strictures during subject the President to constitutional See, e. g., wartime. Duncan v. Kahana limitations,85we must undertake an anal moku, S.Ct. 90 ysis of whether the Fourth Amendment (1946)(substitution L.Ed. 688 of military mandates President must civilian process law for unconstitutional fact his submit national security wire allegation despite that Hawaii was in tapping prior judicial installations to ap danger of attack and law martial proval. tenko, supra note 634-635 Times Co. York also New See 84. J., (Gibbons, Note, dissenting); Foreign States, supra U.S. at Securi note ty Amendment, Surveillance and the J., concurring): Fourth (Black, (1974) Harv.L.Rev. 978-979 (“Though argues and some General Solicitor [T]he powers [foreign affairs] exist in the exec agree appear the Court members independently express utive constitutional powers Government general legislative delegation greater or to a extent should original Constitution adopted in powers, than do other executive there is no spe- and restrict interpreted limit support proposition the Constitution for the guarantees the Bill of emphatic cific and amendment, ostensibly the fourth gener a imagine no I can adopted later. Rights legal al governmental limitation otherwise history. perversion of greater activity, applies any fully less to one set of Keith, supra also powers See another.”); 85. note Comment, U.S. at supra than 2125; 92 United States v. Bu U.C.L.A.L.Rev. 1239. ing place searched, to be B. and the things to be persons seized. guaran Amendment The Fourth its brief this court arguing “indispensable our tees one warrantless electronic surveillance con freedoms,”86 the free right pursuant ducted President’s for searches and seizures. Its unreasonable powers affairs does not eign violate the simple: are dictates Amendment, strictures right people to be effect continues adv secure Government87 houses, theory persons, papers, in their ance88 Amend Fourth effects, the Supreme Court against unreasonable ment has con searches seizures, violated, sistently shall discredited: not be relevant “[t]he issue, is not whether Warrants shall but test reasonable to upon no [was] cause, warrant, supported procure search but whether by Oath probable affirmation, was reasonable.”89 particularly the search We are describ- Shortly example, his return from the Nurem- argument after For was ad- trials, berg Justice Jackson wrote of the rejected by Mr. vanced Government and import great Keith, Fourth Amendment values: supra note 2. See n.16, U.S. at 315-316 & 92 S.Ct. 2125. protest, rights], I Amendment [Fourth These also, Smith, United States v. C.D. rights belong second-class but not mere Cal., F.Supp. catalog indispensable freedoms. in the Among deprivations rights, none so ef- Appellees assert that we must cowing determine population, crushing fective whether surveillance was putting reasonable spirit of individual and terror in “Upon The Facts And Circumstances Necessi- every Uncontrolled search and sei- heart. tating The Surveillance Of The Office Of The of the first and most is one effective zure weapons League.” Jewish Defense appellees Brief for every arbitrary of in the arsenal 8, at 21. See also id. at emphat- 25-27. Keith government. ically rejected approach this 160, States, 180, to the Fourth Brinegar v. United 338 U.S. Amendment the context of 1302, 1313, national (1949) 93 1879 L.Ed. 69 S.Ct. surveillance: (Jackson, J., dissenting), quoted approvingly in States, v. United 413 U.S. Almeida-Sanchez Though speaks the Fourth Amendment 2535, 274, 266, (1973). 37 93 S.Ct. L.Ed.2d 596 broadly “unreasonable of searches and sei zures,” of the definition “reasonableness” opinion we will In the of this often course turns, part, specific least on the more at appellees as “the Government” “the refer to of the warrant clause. commands Some The suit Branch.” was instituted Executive argued that relevant test "[t]he have is not he while was still Attor- Mr. Mitchell procure is whether it reasonable a search the ney of United States and is General warrant, but whether the search was reason Attorney premised as on actions he took Gen- able,” Rabinowitz, United v. States 339 U.S. alleged prerogatives pursuant to the eral view, 56, (1950).16 however, 66 This over foreign field of affairs. in the As President Attorney second looks the clause the Amendment. duty Mr. Mitchell had the General the The warrant clause of Fourth Amend questions concerning the President advise language. is not dead case, ment in this as those involved see 28 such law (1970), litigation to conduct 511 § U.S.C. 16 accepted. This view has not been In Chi- United an officer the States was a which California, (1969), 395 U.S. 752 v. the mel 516, (1970), 519 party, U.S.C. and to §§ see 28 the Court considered Government’s conten- of the United to the interests States in attend judged general on a that the search proceeding, 28 § see U.S.C. 517 court standard without “reasonableness” reference- Moreover, (1970). after even Mr. Mitchell re- The clause. Court the warrant concluded Attorney signed his as General successor was argument was on “founded little more defending responsible this suit civil based subjective regarding accept- a view the than actions, see 28 § official U.S.C. 2679 his on police conduct, ability of certain sorts of Indeed, Attorney (1970). the Assistant Gener- on considerations relevant Fourth attorneys Department from the Justice al and Amendment interests. Under an un- appellees, presume representing and we analysis, pro- Fourth Amendment confined legality arguments toas the of warrant- their approach tection in this area would evaporation security wiretapping conducted less pursuant Id., point.” at 764-765. the President’s affairs . n.16, 407 U.S. at 315 & 92 S.Ct. at 2137 See powers be no different if the United States, also, proceeding. party v. United in this Almeida-Sanchez were a named States

629 we must focus our attention weighed stances to be advised this Court case,” circumstances this considering brief “the reasonableness 8; at “the circum- appellees conduct challenged 86, 277, supra danger 413 at note U.S. 93 S.Ct. redetermination of the 2535 cial improper. actual J., 233-235, concurring); (Powell, Katz v. 414 at See U.S. 94 S.Ct. 54, 356-357, 467; U.S.App.D.C. 146-152, supra 389 note U.S. S.Ct. Comment, 507; supra 53, Indeed, (dissenting opinion). 1114-1120 U.C.L.A.L. Robin- Supreme 1224-1234. Even if can be as a Rev. at son viewed converse case to those that, though to decide that which hold mag- valid decisions even Court considerations a might warrant, a warrant need have dictate that not be istrate issued a obtained the war- police per the President orders search when installation of rantless elec- officer was se pursuant Moreover, tronic surveillance to his unreasonable. one of af- the Justices presume powers, majority approach we it would fairs attributed “essential problem perspective premise” from the it decision to the whether conviction that except lawfully person subjected pro- reasonable to from who is to a custo- category involving significant cedure the cases dial arrest “retains no Fourth power, than privacy rather whether it interest per- was Amendment son,” reasonable of his (with conduct a surveillance to warrant) and that the search without a incident to arrest particular requires justification. under circumstances therefore no additional Nevertheless, many (Powell, involved in case. J., See concurring). U.S. at 94 S.Ct. at 494 question context, courts confronted with the le- how- ever, gality erroneously of such surveillance have is evident that the initial decision to approach. infra, significant followed the latter entails the search expected invasion of an at---, privacy F.2d at zone and thus 636-641. has the greatest judicial scrutiny. need for antecedent might argued It Edwards case is enig- two recent somewhat more opinions, Robinson, majority United States since the Court v. matic five-Justice referred prior (1973), 94 S.Ct. U.S. to a case—which L.Ed.2d 427 sustained the search of Edwards, v. United States one automobile week after it was seized— rejecting argument (1974), 39 L.Ed.2d 771 police that “the retreat- approach warrant, somewhat ed have obtained a search could Fourth for the Amendment discussed in text held test below. to be not In Rob- whether it was procure warrant, inson the Court held: reasonable to a search but suspect reasonable, A custodial arrest of a probable the search whether itself based on cause is a it was.” 415 reasonable U.S. at intrusion un- 94 S.Ct. at Amendment; discussing California, Cooper der the Fourth intrusion lawful, being search incident to L.Ed.2d 730 arrest requires justification. majority Cooper, however, no additional It The five-Justice is the Rabinowitz, lawful arrest fact of the which on United establishes relied States v. 339 U.S. search, authority 66, 430, 56, (1950), and we hold 70 94 L.Ed. that in S.Ct. 653 proposition, 62, a the case of lawful custodial see arrest a that 788, 386 full U.S. 87 at S.Ct. person approach exception search of the is not and the of Rabinowitz was sub- requirement sequently explicitly rejected by to the warrant of the Fourth the Court in Amendment, California, 752, but 764-765, is also a v. Chimel 768, 395 “reasonable” search under that Amendment. 89 23 S.Ct. L.Ed.2d 685 See 811-812, Ignoring (Stewart, J., 94 414 U.S. at S.Ct. at U.S. at 477. 415 94 S.Ct. 1234 decision, Douglas, compare Marshall, JJ., merits of the Robinson whom with Brennan & id. 219-237, dissenting). joined, Although (majority might S.Ct. at opin agree at 94 469-477 we 238-259, ion), at with id. 94 at the Edwards S.Ct. with dissenters 469-488 that the Court’s J., (Marshall, dissenting); compare prior decision was somewhat inconsistent with Robinson, doctrine, U.S.App.D.C. 114, States v. 153 Fourth Amendment we do not be- 119-140, majority (1972) F.2d (en 471 lieve the 1087-1108 intended to overrule sub si- banc) (majority opinion), id., approach lentio the basic Fourth 153 Amendment U.S. 144-156, that, App.D.C. exigent 471 holds F.2d at which absent 1112-1123 circum- J., stances, (Wilkey, dissenting), per a we warrantless doubt search is se that unrea- infra, U.S.App.D.C. Court intended the decision See to alter sonable. 170 the tradi at-& approach analy tional to Fourth 516 Amendment notes & F.2dat & 630-633 notes 91 infra, holding U.S.App.D.C. at-, See & For in sis. seizure defendant’s Rather, appeared after F.2d 630-633. clothes hours his arrest to be Court reasona- warrantless, though saying majority even that a ble search incident to a con- valid always justified by custodial arrest is sidered search and seizure to fall within exi exception, gent potential danger the “search incident” circumstance of since it found officer, arresting processes case-by-case judi- “the normal and that a incident to arrest merits and herein, the actions of the Jewish De- ative demerits are of requiring to proceed the Government League, by directed toward Soviet of- way fense procedure country, which in this were of obtaining ficials nec essary foreign to materially intelligence a character as effect information.90 country relations between this [sic] Quoting Cady Union, which, Dombrow the Soviet ski, 433, 439, 413 U.S. S.Ct. through reciprocal the threat of action, (1973), 37 L.Ed.2d 706 appellees the lives endangered correctly of American citi- observe the “ultimate country,” 25-26; id. at standard set zens forth Fourth Amendment implications not consider is rea need we sonableness.” appellees Brief for surveillance on the at 25. warrantless exercise However, they neglect quote rights, Amendment First since im “the mediately following sentence, which rep Jewish Defense League, actions the proper resents approach to a Fourth necessitated Amendment problem: organization, simply were their not limit- the exercise of constitutionally pro- ed In construing this command rea [of speech conduct,” tected id. at 27 sonableness], there has been general added); and (emphasis the reasona- agreement “except in certain of warrantless bleness wiretapping carefully defined cases, classes of predetermined somehow the legiti- private search of property without mate need Executive Branch to proper consent is ‘unreasonable’ unless information, acquire generally see id. at it has been authorized a valid are all 21-32. These erroneous conten- search warrant.” Municipal Camara v. Unfortunately, tions. their zeal Court, 387 U.S. 528-529 S.Ct. [87 present justifica- favorable facade of 1727, 1731, 18 L.Ed.2d (1967). See 930] surveillances, tions for these appellees Coolidge Hampshire, v. New only superficially addressed 443, 454-455 S.Ct. [91 L.Ed.2d questions concerning substantial the rel- (1971).91 564] custody completed Appellees merely had not been refer to the when Ed- decisions of placed support position in his wards cell.” See 415 courts in of their U.S. at other that it effect, 94 S.Ct. at 1237. for the is reasonable Executive to institute Cooper foreign security arguing that, wiretaps, cited in the context of see warrantless brief police justified 29-32, conducting appellees once but neither those deci- seizure, authority appellees search their does sions nor in this case discuss actual evaporate passage delay, judicial competence, even after of a substantial interests —such period 805-809, of time. See might id. at or avoidance S.Ct. leaks —which primarily objected procedure 1234. The dissent arguably inap- to char- render the warrant being propriate acterization search as “incident” where threats to national se- curity to the arrest. See id. at are the basis for electronic surveillance. infra, appear at---, But it would that such an “exi- gent exception, justified circumstances” on the F.2d at 633-651. police safety, evidence, of basis destruction of escape prisoner, prompted major- of the the also, g., 91. See e. Almeida-Sanchez v. United holding, 802-803, ity 806-809, see id. at 94 States, supra 86, note 280-282, 413 U.S. at 93 (particularly closing quote 1234 S.Ct. the from (Powell, J., S.Ct. 2535 concurring); Keith, su- DeLeo, Cir., 487, United States v. 1 2, pra 315-316, 318, note 407 U.S. at 92 S.Ct. (1970)), majority and that the 493 did not in 2125; California, supra 89, Chimel v. note 395 question fact intend to divorce the of a 762, 2034; U.S. at Terry Ohio, 89 S.Ct. v. 392 search’s reasonableness from the Fourth 1, 20, 1868, U.S. (1968); 88 S.Ct. 20 L.Ed.2d 889 requirement, except Amendment’s warrant in States, Katz supra 54, v. United note category exigent traditional the cases where 357, 389 U.S. at 88 S.Ct. 507. Indeed, are circumstances involved. the deci- appellees’ discussion Edwards, The remainder of the distinguishes in factor which sive analyzing proper a Fourth method of Amend- cases, most other Fourth from Amendment similarly misleading problem is and ment erro- clothes, probably the fact that was which appellees Ap- for at 24-25. See brief neous. pellees “plain sight,” in were were themselves evi- Ohio, Terry supra, quote qual- activity. of criminal See dence 806, 415 U.S. at ifiedly police practice approved the of “frisk- 1234. 94 S.Ct.

631 contend, appellees true, exigent based on have been other cir of course It is does not delay Amendment cumstances where Fourth frustrate “the and seiz legitimate Indeed, searches police activity. warrantless all prohibit However, presumption has Keith Court recognized ures.”92 should be exceptions that a warrant these “are few in always been num ex and practicable, ber and carefully delineated.” whenever 407 U.S. obtained requirement the warrant at S.Ct. at 2137.93 ceptions prohibit “stopped” ques- does not ing” all individuals who for the Fourth Amendment are tioning, proposition based on less than tradi- searches and seizures for the appellees “probable Brief for inquiry cause.” at tional the central Fourth Amend- under fact, recognize this but realize that 24-25. We the reasonableness in all the ment cir- [is] imposed particular governmental a warrant re- the Court in Camara cumstances governmental quirement; special security. interests personal a citizen’s invasion only justifying case quoted a search in that merited U.S. at S.Ct. at brief showing exception Terry the strict that evi- appellees at 25. But the Court has- for ' produced by scope holding: dence of a crime would to limit the of its tened case, Similarly our holdings factors which search. do not our We retreat from that the must, might practicable, cause a court to issue a warrant on less police whenever obtain probable judicial approval cause are not them- than traditional searches and advance require abrogation through procedure, selves factors which total the warrant seizures * * * procedure determining if of the warrant or that in most instances failure to probable comply requirement cause standard is actual- the lowered with warrant can - infra, only exigent U.S.App.D.C. by ly See be excused met. circumstances * * at---, -, 644-646, here F.2d at *. But we deal with an 656- entire 314-323, necessarily police 657. See also 407 U.S. at rubric of swift 92 S.Ct. conduct — (warrant required predicated upon on-the-spot 2125 surveillance, for domestic action ob- probable although showing of the officer on the cause servations historically beat —which been, practical “ordinary differ has not and as from that context of crime”). be, subjected could matter the war- procedure. rant U.S. at 88 S.Ct. at 1879. appellees 92. Brief at Similarly, appellees propo- Keith for the cite flexible, that the Fourth Amendment sition also, States, Jones v. United requiring that courts “examine [the then com- 493, 499, U.S. (1958) (exceptions 78 S.Ct. 2 L.Ed.2d 1514 peting and balance the circumstances] basic requiring rule that search * * appellees at stake Brief for values “jealously warrant be obtained have been quoting 407 U.S. at S.Ct. 2125 carefully drawn”); cases cited at note 91 su- brief). (bracketed language supplied They pra. quotes As indicated from Camara argue if this case as then circum- below, exceptions Keith in text these actually to be stances considered those premised compliance on the notion that herein —the actions of the JDL involved requirement the warrant in such circum- responses Union. the Soviet Id. at 25- legitimate stances govern- would frustrate the 26; supra, -, see purpose mental search; of an otherwise lawful However, F.2d 627-630. Keith Court general, they “in legitimate serve the needs of it clear made that the factors be balanced protect law enforcement officers to their own implicated category were those values well-being preserve evidence from de- example— cases which Keith but one was struction.” 407 U.S. at 92 S.Ct. at 2137. duty protect Government the do- category excepted One of cases from the mestic privacy invasion of individual requirement “border search”— —the expression might and free result might, however, seem anomalous and there- surveillance, from abuse of warrantless see 407 supportive governmental fore view U.S. at What might justify need itself warrantless searches weigh did not do the reasonableness and seizures. See also 94 infra. In Car- installing wiretap specific under the cir- roll v. United 280, case, subject cumstances of that where the (1925), 69 L.Ed. 543 the first “automobile wiretap allegedly the had bombed a CIA office. case, search” Court observed in infra, (cid:127) -, -, U.S.App.D.C. at dictum: .632,634-635. And, course, at F.2d the Court required may stopped decided that a in fact crossing warrant was Travellers for be so boundary such surveillance. international because of national reasonably Finally, self-protection requiring appellees Municipal cite v. one en- Camara Court, 79, tering country identify supra proposition himself as note enti- although we Thus, “seriously do not obtaining burden of a warrant is likely time of serious internation- in this doubt governmental to frustrate purpose peril thsre is an insecurity and al behind the search. necessity obtaining for- imperative Camara v. Municipal Court, 523, 387 U.S. information, and we do intelligence eign 533, 1727, 1733, 87 S.Ct. 18 L.Ed.2d 930 gathering is forbidden such not believe (1967) (emphasis added). Keith, In Constitution,” appellees brief for by the Supreme Court reiterated this methodol- 29-30, Clay, United quoting States at ogy: 172, this is but supra, legitimate If the need of Government end, inquiry. of our beginning, safeguard domestic security re- quires the use of electronic question not, The is surveil- this stage at lance, question is least, whether whether these inspections may needs of citizens for privacy made, be but free whether they may be * * * expression may not be protected better made without a warrant. In by requiring a warrant before assessing whether the public interest is undertaken. We demands creation of a must general excep- also ask whether a warrant require- tion to the Fourth Amendment’s war- ment would unduly requirement, rant frustrate the ef- the question is not forts of Government protect public whether itself justifies interest from acts of subversion type of search overthrow question, but directed it. whether the authority to search should be warrant, evidenced which in 315, U.S. at 92 S.Ct. at (empha depends turn part upon whether added).94 sis Similarly, here we must de- they in, only belongings and who can demonstrate that transporting and his as effects to come tied goods lawfully may lawfully brought which can in. Moreover, brought country. 154, into the there is Almeida- 45 S.Ct. at 285. See also Id. at 86, danger States, supra little abuse of such searches. See v. United Sanchez Note, generally Bags 272-273, Body From As the Cavities: 93 S.Ct. 2535. Carroll U.S. at Search, acknowledged, The Law of Border 74 Colum.L.Rev. 53 searches classified as (1974) (discussing dangers equivalents” inherent in extend- or “functional searches border searches). always ed and intrusive border been free of both the war whole thereof entering country probable requirements class of those fairly homogeneously, is cause treated rant and the See, inspections place Amendment. Almeida- take the Fourth places, 272-273, Sanchez, supra, at identifiable 413 U.S. at 93 S.Ct. over-intrusive searches apparent opinion); subjects (majority id. at will be their at 2536-2540 court, (dissent challenged 291-293, thus be 2548-2549 and there 93 S.Ct. is a Note, privacy opinion); minimal invasion of ing Border and the since there Searches is an Amendment, part (1968). expectation entering on the 77 Yale L.J. 1007 of those Fourth However, they possessions probabili- crucial considera and their will in there are several all justify special ty possibly treat be searched at least some extent. Final- tions which ly, and which differenti unlike the national border searches searches in- ment for case, infra, gov normal searches volved in our see ate such searches at---, 516 F.2d at Amendment or the nation there is the Fourth no erned 633— involved in this case. substantial likelihood that searches border searches al will important rights. is the fact that a chill the exercise of First Amendment and most First conducted incident to confer border search States v. United States Dis- privilege 94. See also United of admittance to the coun ral of the try, Court, supra note subject 444 F.2d at 666- trict it is certain seemingly anomalous case which ar- receiving 667. One fact that benefit. Cf. is in search Biswell, guably considered Government’s needs States v. 406 U.S. authority Wy- (1972); to search is determinative Colonnade Cater 32 L.Ed.2d James, 72, 76-77, 400 U.S. 91 S.Ct. Corp. man v. ing v. United upheld (1971), which a New York See also L.Ed.2d 25 L.Ed.2d 60 90 S.Ct. requiring implementing regulations Almeida-Sanchez, supra, statute and 413 U.S. at recipients permit effect, either home visi- that welfare border a reasonable by their case workers loss tations or suffer “consented” to order to obtain a search initially benefits. The divided Court to be accorded those who aid that is their benefit searches gain home visitations were not held that should admittance can show that requirement States, whether a warrant termine United su Katz nized in both Fourth protect better Amendment will Keith, Fourth Amendment pra, foreign intelligence gather- when involved, rights gov unreasonable is a bulwark and whether such a re- ing by non-trespassory intrusion ernmental unduly fetter legit- quirement means; by as trespassory as well both functioning of Government. imate history of and the spirit Amend valid unless there are reasons for For that there legiti is a demonstrate ment abrogating procedure the warrant when that one’s conversa expectation mate implicated, foreign relations are one’s home are less than to be tions no comply must tradi- President by panoply the full of Fourth sheltered cannot, procedure. appel- We tional safeguards. po And of the Amendment done, have simply and some courts lees a safeguards, “[p]rior by review tential question threshold deter- ignore magistrate is the and detached neutral mining the reasonableness of searches effectuating time-tested means out in seizures carried furtherance Keith, rights.” Amendment Fourth responsibilities pro- the President’s of tecting 318, at 2137.96 S.Ct. the national from for- judicial Prior review is im dangers. eign protect portant the privacy interests of those whose conversations C. overhear, the Government seeks to but legitimate is a there To admit protect also to free robust exercise part need rights speech of the First Amendment foreign intelligence in acquire Branch might those who and association oth long- or short-term for either formation the fear unsuper erwise be chilled not, security purposes95 is we power and unlimited Executive vised that the locus of repeat, to admit must institute electronic surveillances.97 As power as to the decision-making initial the Keith Court stressed: particular aof propriety * * * the Executive National security itself rest with cases should of- recog- convergence Court ten reflect a As the Branch. First and and, believe, meaning Amendment, exceedingly of the Fourth delicate we within difficult to; recipient questions concerning scope visits were consented exact since the powers violating substantive President’s could withhold consent without informa- law, gathering although field. action would be at the cost 317-318, See id. at of his welfare benefits. supra. also, wiretap, g., A 96. Coolidge 381. See also note S.Ct. e. Hampshire, v. New course, conclusively 443, 449, 2022, has been held to be a 403 U.S. 91 S.Ct. 29 L.Ed.2d seizure, States, (1971); Katz v. States, search and see United Katz supra v. United note supra 356-357, note and we doubt that charac- 507; U.S. at Wong 88 S.Ct. dependent any degree upon States, terization is in Sun v. United 481-482, 371 U.S. type sought. of information As alternative (1963); S.Ct. 9 L.Ed.2d 441 Johnson v. however, Wyman that, holding, 10, 13-14, Court held 68 S.Ct. search, even if the visitation were considered a 92 L.Ed. 436 it was not under unreasonable the Fourth contemplates The Fourth Amendment pri- though even warrantless. Since Amendment judicial judgment, not the risk that execu- emphasized peculiar factual situ- the Court reasonably tive discretion exercised. case, 318-324, ation of the see 400 U.S. This role accords with our basic con- subsequent and since Keith and stitutional doctrine that individual freedoms adhered to traditional Fourth cases preserved through will best be separation analysis feeling without con- Amendment powers among and division of functions Wyman, to discuss we strained believe the the different branches and levels of Govern- either the first considers alternative ment. holding opinion, basis for to be the actual Keith, supra note 407 U.S. at Wyman merely par- limited to its or else has (footnote omitted). at 2137 ticular factual context. See, Note, supra repetition, empha- At the risk of we- must Harv.L. today deciding any we are not Rev. at size 634 values present of innumerable innocent individuals. As

Fourth Amendment Though appellants forcefully argue: “ordinary” crime. of cases of investigative duty the executive logs examination of the [A]n [of cases, also stronger in such so may be would show that surveillance] [sic] to constitu- jeopardy greater is there contains the names and addresses of * * * speech. tionally protected many individuals who called the or documents abundantly History ganization, contributed funds or mem be- tendency of Government —however dues, bership gave the office re benign its motives —to nevolent ceptionist information regarding their those most who suspicion view with mailing addresses. A broadside at policies. its dispute fervently tempt a to obtain such membership list plainly violate First Amend 313-314, 92 407 at S.Ct. at 2135. U.S. ment’s protection association convergence of First a and Fourth Such (NAACP v. Button ex rel. [Alabama is particularly values evi Amendment Patterson], 357 449 1163, U.S. S.Ct. [78 Many case before us. dent in the (1958); 2 L.Ed.2d Bates v. Little 1488] Rock, antagonized 361 516 412, U.S. S.Ct. JDL activities98 4 [80 (1960)), L.Ed.2d and to obtain it 480] government clearly protect were Soviet by such clandestine means is a patent First Amendment exercises ed evasion of the constitutional liberty. Indeed, there is no evidence rights.99 Brief for appellants 30.100 In reconcil a percentage more than small of the ing the Government’s need for informa thousands of JDL members engaged in rights tion of these individuals, activity. Yet criminal the actions of judge a in a warrrant proceeding might minority have formed the basis for have limited surveillance to the intrusive surveillance lasted over phones of those actually suspected of seven and that months resulted in sei behavior, criminal or directed that no re zure cordings of the contents of the logs conversations be made101 of conversa- case, prior veillance, judicial see re- benefit true An additional as was 34, proposed subject group supra,-U.S.App.D.C. note 516 is the at-& view a when 34, surreptitious sur determination as to wiretap a neutral & note a is at 610-611 F.2d subjects allegedly engaged deny may those effec who individuals also whether the veillance derogation activity allegedly of their or who must be of counsel in criminal tive assistance See, rights. United obtain informa- Sixth Amendment overheard 1, Cir., (1970); Zarzour, actually group, F.2d 3 what 432 members 5 States v. 103, is, States, U.S.App.D.C. participation group Coplon 89 their level denied, legal (1951), 342 consequent and their cert. the actions whether 191 758 F.2d (1952). may properly L.Ed. 690 See be attributed to the 72 S.Ct. ramifications U.S. States, group as to the v. United as well individuals involved. also O’Brien us, (1967); Black government v. Unit before Soviet 18 L.Ed.2d case many press L.Ed.2d attributed ed and members suggest JDL, not mean and individu- We do activities the violent partially a motivated appellees purporting re- even to be JDL members claimed als attorney-client privileged many bombings sponsibility of Sovi- overhear desire pending concerning supra. judge criminal See note A et communications installations. However, supra. note dispassionately we assess note 23 able to trials. See would be may prompt allegations of these that such motivations reasonableness propriety accordingly constitute another wiretapping thus the or- in other situations particularly authorization prior ganization. es- This assessment abuse which help organization political in- to curb. when sential organization’s the bulk of an volved or when measure, prophylactic As a a court in a merely legiti- membership its has exercised proceeding recording should order rights. mate First Amendment all conversations enforcement officials U.S.App.D.C. supra, at-& 99. See infra, overhear. & note 607-610 -, 668; F.2d at cf. 18 U.S.C. However, already 2518(8)(a) (1970). § require indictments court criminal could 100. When that, subjects agent a sur- as soon as the some determines been returned clearly pertained lawful limitation of such tions warrantless surveil activities. organizational or political “agents” lance of a JDL foreign power105 alter the fact that First Amendment course, even if this Of case itself in rights of others are likely to be chilled. only nonprotected volved activity, test, Under such a a few alien members chilling of problem First Amendment political organization a would justify Keith, rights of others would In remain. surveillance of the conversations of all example, for defendant’s alleged members. For example, antiwar organi bombing of CIA office certainly would sponsored zations which speeches by beyond pale protected have been South Vietnamese political dissenters yet recognized the Court speech;102 during the 1960’s could have been wire would affect often similar cases the ex tapped without a personal rights.103 fundamental ercise because of the disruptive effect important, appellees More here their do not actions allegedly on the peace their assertion of had conduct of power, negotiations limit Executive Indeed, in Paris.106 holding of the District even a domestic po litical leader appear apply readily as could would to situ be wiretapped with out a warrant if in which a government ations Government be lieved he had wittingly retaliation threatened American unwit tingly solely “agent” become based protected officials of a activi for power.107 eign To American allow ties citizens.104 would Nor 1241-1242, pertain 1249, provide judicial does a conversation some wiretap, subject supervision of the both the to ensure that the location authorized overhearing for the recording wiretap conveniently and the cease until an- was not chosen so that been initiated. has substantial numbers of conversation non-aliens would other also be overheard. Cf., O’Brien, 102. g., United States v. 391 e. 106. See infra, U.S.App.D.C. 170 1673, -, 367, (1968). at 20 672 516 88 S.Ct. L.Ed.2d U.S. F.2d at 653-654. Keith, 2, 103. supra 407 U.S. at See note 313- 107. See, g„ Times, 8, 1972, 1, e. 314, 320, N.Y. Feb. at S.Ct. 2125. 92 (presidential 8 col. aide claims critics of Presi- generally F.Supp. (par- at 942-944 peace plan “consciously aiding dent’s are ticularly 8). Conclusions Law 7 & abetting enemy States”). of the United Note, supra 85, See also note See, Decision, g., Harv.L.Rev. e. Recent 41 Geo.Wash. ' at 987. 119, (1972). acceptable To be doc- L.Rev. necessary ground trinally, it would be raising such spectre hypotheti- of “horrible on a cals,” distinction construction of Fourth Judge Prettyman’s we are reminded of which accords an alien an “as- Amendment comments for this in a court Fourth Amend- context; rights cending scale he increases his ment society.” identity our Johnson v. dealing with Eisen- with [W]e doctrines and not with 65, 770, trager, supra note 339 U.S. at presumable taste and sense of individual However, such a in- construction is Maybe at examples officials. none of these the thrust of current cases consistent question would ever occur. But the before dealing rights with the constitutional they aliens. happen us is not whether would but Note, See, supra g., note e. 87 Harv.L.Rev. legally whether could. Griffiths, also In Little, 988 & n.56. See re District of Columbia v. (1973). 93 S.Ct. L.Ed.2d 910 18-19(1949), af- Moreover, it would not accommodate the grounds, situ- firmed on other 468, citizen of an American who collaborat- ation 94 L.Ed. 599 Unfortunately, And, ing foreign power. with a as noted in recent events reveal that such activities are text, exception subject actually such an would be hypotheticáls. more than mere For abuse, particularly defining Nelson, what example, constitutes introducing Senator a bill way curtailing Of course one procedures collaboration. security to establish for potential surveillance, abuse such some exception listed several recent cases in prior require judicial which national was used to cloak proposed subject questionable that the practices determination employed surveillance category was within the of indi- generally the Executive Branch. See being stringent Cong.Rec. accorded less (daily Fourth viduals 1973). S23026 ed. Dec. see, rights, Among States Amendment these were: 426; Smith, F.Supp. supra (1) note Installation in 1969 warrantless wire- Comment, supra taps U.C.L.A.L.Rev. on 13 Government officials and four abrogating arguments possible its own determinations to make Branch requirement where our national abuse, matters invites and warrant as to such endangered knowledge pos that such abuse is public doing, In so we are mindful of deathly pall vigor can exert a over threats. sible First Amendment debate on issues ous warning of the Supreme Court foreign policy.108 grounded must not be arguments utility, with the realization expediency Thus confronted but must relate to review can serve to prior factors would cause the warrant Fourth Amend safeguard needlessly legiti- both First and frustrate procedure foreign gathering intelligence mate ment to rights,109 our attention we turn countries, see, Times, g., newsmen, they e. N.Y. purportedly developed because were leak- (increased emergen- foreign intelligence publishing col. 8 ing sensitive Nov. or of, alia, wiretaps impossible inter cy of these even because Two were aid information. food subjects supplies), had left after their Govern- or to trade with continued ment service of domestic level Union, begun working see, powers and had on Sena- the Soviet as such gen- Post, 6, 1974, presidential campaign. Washington See Oct. col. 7 Muskie’s tor Hearings Henry erally grain (private on the Role of Dr. Kis- deal Soviet Union cancelled Wiretapping potential singer of Certain Govern- adverse effects on de- in the because grain supplies). pleted sponse Newsmen Sen- It is no re- would Before the American ment Officials Relations, Foreign say 93d that the President to ate Committee Cong., “security” tendency wiretap matters. 2d Sess. for security” (2) give the term “national House authorization in 1969 of a to broad White has been definition, newspaper point burglary Joseph overly home of columnist and the whole alleged protection Kraft for installation of an na- Amendment in this area (cid:127)of Fourth security wiretap. through pri- such Executive abuses tional is to avoid Moreover, (3) security exception judicial Invocation of national in induc- review. or burglary accepted by ing Daniel the CIA to assist Government advocated Ellsberg’s psychiatrist’s offices. is not limited to “national securi- courts some ty” wiretapping sense, drafting by (4) in its traditional but the White House of The 1970 engage plan massive warrantless information which “affects” to wire- to a tapping extends foreign mulating infra, which, burglary although ap- use in or which be of for- affairs security grounds, foreign policy proved scrapped decisions. on national at---, F.2d objections after from FBI Director Indeed, if the asserted Hoover. 655-656. at exception Kennedy plenary (5) Administra- based on the President’s Surveillance affairs, King, foreign powers Luther Jr. and other it is diffi- Dr. Martin in the field tion of rights suspected any principled approach activists who were how could civil cult to see distinguish sympathizers dupes. power being wiretap Communist his without a multiplied examples (as opposed wiretap- can be Such several to whether such warrant ping over, reasonable) demonstrate the need for fact on the basis of the times is in oversight judicial importance of Executive of the information as it relates to surveillance Indeed, course, might question practices. foreign one even affairs. Of some such distinc- security might logi- along lines be the Government would have had the whether tion many power wiretap audacity present practices cally acceptable if of these .to magistrate, or whether it would have the President’s status as Command- a neutral based on er-in-Chief; powers in contravention of them the war- but the President’s as a undertaken rant ized them preservation proceeding military always merely if could have rational- have been cited leader necessary post being support authority supplemental hoc as for his security. presumed nonjus- wiretap, ticiability of the national See also it has been the n foreign 154 infra. affairs decisions which accept pro- prompted other courts to has Indeed, “foreign” wiretapping can posed exception for warrantless national se- pall over robust discussion of even exert infra, U.S.App. curity surveillance. See ordinarily that would be considered do- issues at---, 516 F.2d at D.C. 636-641. mestic, given interrelationship the close be- likely efficacy foreign discussion of affairs and the 109. For a tween domestic and actually achieving requirement in foreign that most domestic issues “affect” the warrant fact aims, Note, supra generally degree. example, see some For even the its theoretical note affairs to quantity production at 989-992. 87 Harv.L.Rev. of domestic wheat could foreign assistance to under- said to relate However, appellees since information.110 tional where powers are in directed our attention to n.20, volved.” 407 U.S. 322 92 S.Ct. at seeking factors, relegated we are 2139.111 The American Bar Association have caused several oth which Project, rationales after noting that “the national except intelligence courts er interest is properly a concern prior ju the strictures activities primarily government federal un authorization. dicial our constitutional system,” der merely “ asserts [limitations are Keith, In cited when the proper internal affairs of the Smith, supra, v. States solely nation involved become artifi United States F.Supp. when cial international realities are con Bar American supra, and Associa- Clay, sidered,” 121; id. at a system prior Project on Standards Criminal supervision would be “unworka Justice, Electronic Surveillance ble in this area.” Id. No reasoning Draft and Feb. (Approved propounded whatever as to why the the “view that 11), for warrantless Supp. procedure would actually * * * may be constitu- “artificial” “unworkable.”112 Clay Although pas Draft at 120. See Tentative this -, U.S.App.D.C. at 516 supra, 170 See quoted sage has been on various occasions York, Berger v. New See also 631-633. F.2d 388 unhappy limiting with decisions Justices utive Exec-: 1873, 1885, 18 L.Ed.2d 87 S.Ct. discretion, see, g., e. United States v. require- forgive the (“we (1967) cannot 1040 Robel, supra note 389 U.S. at 88 S.Ct. the name in Amendment the Fourth of ments J., (White, dissenting), 419 several caveats enforcement”). of law expressed. apparently As the should be understands, ABA Stone, D.D.C., States v. United also 111. See 120-121, see Tentative Draft at (decision pre- (1969) F.Supp. based on proposition security that national is of ut doctrines); Amendment Fourth Katz import does not resolve most a host of difficult D.D.C., O’Baugh, F.Supp. States (1969) D.D.C., questions. Madison’s comment came in the Hoffman, (same). United States v. In supporting power context of constitutional (1971), F.Supp. up- the court government to raise the federal armies and foreign intelligence legality wire- of held tap equip entirely problem It is fleets. different invalidating security four domestic while power seeks to determine how when one is government Although the court did not surveillances. state its lously among to be distributed branches of holdings, it meticu- reasons these system and how the constitutional up law the case that time recounted operate of checks and balances is to spect with re arguments concerning the Government’s Hamilton, power. writing to that a later types security legality of national of both paper, expressed Federalist extreme concern argu- These See id. at 506-509. surveillance. dispersion power of that such was essential contentions that a warrant included ments procedure powers grandi lest the President’s become too security posed of leaks and a risk See, single g., for a individual. ose A. Ham concerning installation of such decisions that wiretaps Federalist, ilton, The No. at 464 — 465 factors, range of a broad involved 1961). Moreover, (Cooke ed. it must be re many See id. at 506. secret. of them Rights, including the Bill membered Fourth adoption ap- noted that the It should be Keith Court Amendment, promulgated was after parently these cited sources for “information- original Constitution, presuma is, purposes; merely al” referred to bly general governmental as a limitation on neutrally approvingly. them rather than In- power governmen and a broad shield deed, opinion in the text of its the Court ex- supra, U.S.App.D.C. tal excess. See plicitly “express[ed] opin- cautioned that it no - & notes 84 & 516 F.2d at 627 & the issue. See ion as to” 407 U.S. at Despite apparent 84 & 85. notes voiced concern 2125; infra, statement, language in Madison’s no -,at 516 F.2d at 651-653. exempting government the federal from the Admittedly, quotes Amendment, the ABA also J. Madi- prohibitions First for ex Federalist, son, p. (Cooke No. ed. ample, category was included for the gov 1961):' activity relating ernmental curity. to the national se oppose barriers constitutional vain to is in It to the self-preservation. impulse Proposed It is In the ABA’s Final Draft of its vain; plants Relating because it than Standards (Jan. Electronic worse Surveillance necessary usurpations 1971), Special itself Committee Constitution power, noted that germ every precedent proposed which is a it had defeated a amendment that unnecessary multiplied repetitions. suggested have would the President similarly opaque. Circuit was peril the Fifth there is an imperative wiretap determining that was necessity After for obtaining foreign intelli- Attorney by the General and gence information, approved and we do not be- acquisition connection with made such gathering lieve forbidden information, intelligence the Constitution or by statutory provi- ' * * simply asserted: court sion *. seriously in this doubt No one 430 F.2d at 172.113 have, We of course, insecurity serious international time of recognized the necessity for such intelli- proceeding proceeding, to a warrant an Alderman supra, submit before should engaging eign see note 14 inspection surveillance in electronic the for- court’s camera of the security logs disputed wiretap It indicated that area. revealed that the ap- Special Committee was reluctant to contents were not relevant count in the might unduly prove any cumscribe, standard cir- criminal indictment. See 430 F.2d at 170-172. also, indirectly, power Brown, Cir., even e. United States v. (1973), protect in- 484 F.2d 418 President discussed note 120 infra. suggest deny or to that what is Thus it was reasonable to unnecessary terest constitu- might unduly prejudice for the disclosures that Commander-in-Chief to do un- tional na provision of the Constitution tional man doctrine this result could interests. But der one could under the Aider- constitutionally be termed somehow sonable” “unrea- be accom plished by actually deciding under Fourth Amendment. the Fourth question; suspect Amendment pres we respect Special at 11. With Id. all due might substantially sure influenced the Committee, surprised simplicity we are at the contrast, decisions in these panel cases. reasoning. comprehend of this We fail to how of this court has taken a somewhat more can a clause Constitution be read as approach when did faced with a similar situa holding wiretapping warrantless to be “consti- Lemonakis, In United tion. States v. 158 U.S. tutional” without reference to the remainder of App.D.C. (1973), denied, 485 F.2d 941 cert Constitution, particularly when the is the clause 1586, 1587, 415 U.S. 885 39 L.Ed.2d giving textually power such a one limited as (1974), upheld the court the District clause; the Commander-in-Chief indeed the refusing compel Court’s order disclosure of scope given of that clause can be mean- logs security certain national wiretaps. ing whole, reference to the Constitution as a deciding But sue, than rather the constitutional is history adoption as well as the of its holding the court based its on an in cam judicial legislative gloss. and its We wiretaps era determination that the did not suggest- doubt that the Committee would have produce any leading evidence to the criminal it is ed that “constitutional” for the President indictment: political as Commander-in-Chief to arrest a It is not in the national interest for revela- giving speeches criticizing dissident for product tion of either the existence or the money expended military on amount [foreign intelligence surveillance] extend country, suggest this and that it could not that beyond compatible the narrowest limits with action could be such termed an unconstitution- injustice assurance that no is done to the process al denial of “due” under the Fifth accidentally defendant periph- criminal likely Nor would Amendment. the Committee touched, erally as was [the In a defendant]. say that it is “constitutional” for the President field as delicate and foreign sensitive as in- encourage military as Commander-in-Chief discipline telligence gathering, every we think there is by torturing offenders, say and then why proceed the court reason should suggest practice that it could not that such a explore camera and without disclosure to be termed “cruel could and unusual” under the of whether the the issue contents of a for- Eighth Amendment. intelligence eign any surveillance have rele- Although quoted the Fifth Circuit also prosecution Chi- plainly vance to a criminal unre- cago & Southern Air Lines v. subject Waterman S. S. lated as to matter. In a context Corp., where, here, S.Ct. 92 L.Ed. 568 external circumstances indi- proposition (1948), that it improbability would be cate such an defendant is that the criminal courts, without likely “intolerable the relevant adversely affected, to be information, perhaps nullify should review and inspection we think that camera [in is suffi- the Executive cient], actions of properly taken on information secret,” held 333 U.S. at at 485 F.2d at cit- 436, quoted in 430 F.2d at it is unclear ing supra v. United Alderman intended, already the court since it had what (Fortas, J., 394 U.S. curring). S.Ct. 961 con- logs. an in camera review of conducted suggests, might As Lemonakis it any appropriate holding to limit that warrant- Clay It should also be observed that the de- foreign wiretaps illegal pro- less procedural posture made in cision was ne we realize the but of whether gathei’ing,114 factors militated in favor gence ascertaining whether abrogating of also traditional cessity prior receive procedure.116 first The principal must factor activities which however, Circuit, Fifth the Government there urged for approval. that re for its no reasons advanced sult was the fact apparently in fact re no warrant conclusion the decision to initiate surveil- quired. type lance in this of case must be Smith, foreign security possible In aon wide variety “based oí considera- as dic- purely was mentioned exception and on many pieces tions of informa- only presented tum, the court was since tion cannot readily be presented eventually decided in question with magistrate”. to a Gov’t Br. at 8. deciding question against In Keith. F.Supp. at 428. Although the Smith of warrantless domes- permissibility rejected court this justifica- factor as a surveillance, the court Smith tic tion for warrantless domestic security distinguished a situation in which war- surveillance, it noted that might it have predicated surveillance rantless greater force in the foreign security con- security: to the national threats foreign text: very well be that warrantless might It In involving cases foreign affairs this of this type, while uncon- might argument very prevail. well situation, the domestic stitutional situation, numerous non-judicial constitutional in the area of would foreign are relevant factors and the decision possible affairs. This distinc- probably be far removed from largely due to the President’s probable the consideration of cause. power inherent long-recognized, Id.117 This argument, which we will la relations. respect “judicial bel the competence” argument, 426, citing Chicago & F.Supp. merit, has some and we will therefore Lines, Inc. v. S. Air Waterman Southern possible address as a justification for v. Bel S.Corp., supra, and United States dispensing with the warrant requirement already discussed have mont, supra. We security cases. President,115 power inherent however, so, we must doing answer Before it does shown cases ad post-Keith whether an ex propriety consider question which we factors possible The other procedure. vanced warrant ception cases, which all case, The in this consider. must court, appellees unlike Smith prosecu criminal an context fact, then in the it since arose acknowledged this involving procedures,118 re Alderman exception tions asserted alyzed Brown, Cir., v. 5 security taps in terms United States include to domestic spect “ only, at 628—632 & notes 89 re- & applicability at least with ‘reasonable- spective solely judgment,” a proceedings, that ness’ becomes F.Supp. value in order 321 spect to Alderman “ needlessly pro- at and ‘Fourth not be Amendment interests national token, approach evapo- this area would in- tection in ration nia, By Lemonakis same frustrated. ” id., point,’ quoting supervision Chimel of such sur- v. judicial Califor- dicates veillance why supra note 395 U.S. at no reason 89 appropriate, and we see oppor- 2034. inspection is more camera post it be during review than would hoc tune Curiously, contemplated the Smith court 117. infra, 170 See proceeding. U.S. in a warrant App.D.C. that, possibility even if there the gory were a cate- at---, 516 F.2d at 641-648. in which the President of cases need not - App.D.C. supra, U.S. 170 See 114. warrant, might obtain a desirable that -, 631- __, F.2d 516 judicial prior proceeding there be mine deter- 633. whether the case in fact fell within id. F.Supp. See exempted 115. area. See 321 at 426. See Comment, supra note also U.C.L.A.L. under the court noted that The Smith Rev. at 1249-1250. methodology Amendment Fourth appellees advocated case, U.S.App. supra, see supra. 118. See note 14 notes 89 & 516 F.2d D.C. at---& E.D.La., Government has a merely because affirming (1978), 484 F.2d engage need to in certain ac (1970), and United F.Supp. legitimate Butenko, Cir., 494 F.2d 593 v. following proper Instead tivity. States D.N.J., 318 banc), affirming (en (1974) a war determining whether analysis denied, 419 (1970), cert. F.Supp. le would frustrate proceeding rant 43 L.Ed.2d 121 881, 95 S.Ct. need of the Executive to ac gitimate opinions of these indicates reading Our information, foreign intelligence quire simply overlooked the substan the need itself as treated courts these law,119 Keith, including case body of tial warrant- legality of determinative rejects the contention which may be requirement abrogated less surveillance.120 We find this meth- origin foreign intelligence had their U.S.App.D.C. at-& supra, See merely camouflaged domestic intru- note 91. & 630-633 F.2d * * * develop The fact that we sions. (appar- F.Supp. at 943-944 also security wiretaps largely law of considering the fact that the President ently can never be in camera allowed to lessen gather power to essen- the constitutional has protection in the zeal our fundamental intelligence information as conclu- foreign tial Indeed, very secrecy rights. surrounding review). any questions sive requires give that we our decisions the clos- Brown, supra note v. States United scrutiny to executive assertions of est na- merely stated: Circuit Fifth security interest. tional President’s constitutional [B]ecause J., (Goldberg, concurring at 427-428 484 F.2d States in the field the United duty act specially). relations, power and his inherent similarly Butenko court treated the need security in the context of protect national to foreign intelligence gather information as determi- affairs, reaffirm what we held in we legality of warrantless native surveil- Clay, supra, that the Presi- States lance: constitutionally warrant- authorize dent acknowledge requiring prior we While gathering purpose wiretaps for the less foreign approval of electronic surveillance in cases * * * intelligence. Restrictions present might one like the tary some salu- appro- power which are upon President’s * * * balance, effects the better security become domestic priate in cases rely, is to at least course stance, first in- of the international the context artificial sphere. good on the faith of the Executive * * * illegal and the sanctions surveillances in- Clay holding is buttressed Our post-search litiga- criminal or civil cident through Pa- runs the Federalist thread * * * case, too, present In the tion. care to must take pers: the President strong public interest exists: the efficient possible foreign safeguard the nation operation policy- of the Executive’s encroachment, as a whether in its existence depends making apparatus on a continuous with other na- its intercourse inor nation A court flow of information. should be tions. wary interfering with this flow. quoted at 426. The Brown court also 484 F.2d (footnotes omitted). at 605 Of course language concerning judicial the Waterman court did continue: the Butenko of Executive actions. Neverthe- intelligence nullification less, [Fjoreign gathering is a clandes- evident that the court had conduct- it was highly activity, unstructured tine and review of the surveillance in camera ed an logs, for electronic the need surveillance often reasons were articulated as and no anticipated Certainly in advance. cannot posed any danger why post review less hoc officers, acting arise when occasions under prior judicial than would autho- “nullification” authority, seeking foreign President’s are the intelligence infra, U.S.App.D.C. also information, See rization. exigent where cir- at---, Moreover, 516 F.2d at 641—648. would excuse a cumstances warrant. To de- the Brown member of court con- at least one officers be so mand that such sensitive to relatively rigorous templated-a review of the complex they nuances of situations that the justifications for the surveillance: interrupt and their activities rush to must magistrate available to seek a the nearest there be no future insure that must Courts seriously wiretaps would fetter the Executive warrant and that of warrantless wave tidal performance of his affairs in the controlling floodgates use not be their the purposes. intelligence duties. opened for domestic appear nothing would to be more astigmatic Id. This judiciary must not be argument surveillance; that warrantless electronic than an rather warrantless presence of surveillance, many like other warrantless microscopically examine the judges must searches, may justifiable exigent circum- whether determine wiretaps order to enormous.126 would be We find the ment inconsistent simply odology compelling. these factors is none of prior that and of Keith holding and spirit cases, particularly substantial given Although competence”: (1) “Judicial interests Amendment Fourth and First competence arguably factor judicial unsupervised infringed may be that in the for- force when made more has surveillance. domestic than the rather eign response of Keith to context, Thus, that mindful of the fact argument per- nevertheless is analogous powers, presidential existence foreign security any claim tinent scope, preclude does not their whatever and information be- decisions involves exercise of legitimate finding that judicial expertise scope of and yond way in no be frus would powers those experience: prior judi subjecting them to trated accept the Government’s We cannot we must look to commen approval, cial security mat- that internal argument reasoning pos and our own for tators and for complex subtle too are ters justifications exempting for such sible regularly Courts evaluation. prior judicial scrutiny. surveillance most difficult issues of with the deal “judicial competence” to the addition There is no reason to be- society. our in might factors justification,122 judges will be insen- federal lieve that “security danger of leaks” (2) the clude uncomprehending of the to or sitive endanger lives of infor might which in domestic security involved issues might and which seri agents mants Certainly recognize courts can cases. security;123 (3) national ously harm security surveillance in- domestic such surveillance is of the fact that different considerations from volves gathering” type intelligence “ongoing “ordinary crime.” prosecutions are that, criminal since is too subtle or complex threat If the protec Amendment Fourth likely, less law enforcement offi- senior our not as essential as in a normal tions convey significance its to a cers context;124 (4) possibility criminal whether there court, may question one involved in the warrant delay cause surveillance. probable result in substantial might procedure 320, (empha- at 2138 U.S. at security;125 (5) national harm we not believe added). Similarly, do sis administrative burden that the fact will be “insensitive to or judges federal or the courts Executive Branch the issues involved uncomprehending of a require- result from such stances; justify abrogation See, Note, g., supra 85, it does not total e. note 87 Harv.L. requirement 981-982; Comment, for all supra 53, secur- Rev. at note infra, ity 1242; surveillance. Brownell, supra at cf. U.C.L.A.L.Rev. -, Moreover, 210; at 516 F.2d at Rogers, 649—650. supra 39 Cornell note L.Q. argument 797-798; Note, should be evident Yale supra note L.J. at sur- unstructured,” Rutgers 340; veillance Note, “clandestine supra note L.Rev. at on-the-spot judgments might 899-901; and that Saxbe, 45 S.Cal.L.Rev. at times note made, presi- to be supra indicates a lack of the at 3. note oversight dential the Butenko court was See, Note, g., supra e. note 87 Harv.L. theoretically deferring abnegating duty to in its 985-987; Comment, supra Rev. at note judicial oversight. 1243-1244; Note, supra U.C.L.A.L.Rev. cf. analysis particularly incisive 121. For of the 53, 45 S.Cal.L.Rev. at note 890-895. propriety of warrantless national sur See, Note, supra note light holding Harv.L. methodol veillance 980-981; Brownell, supra Rev. at Note, cf. opinion, supra ogy note Keith see 210-211; Note, supra 39 Cornell at L.Q. note 85. 53, Rutgers 340; Saxbe, 23 L.Rev. at supra id., See, g., 983-985; e. 87 Harv.L.Rev. at 122. 66, at note 3. 53, Comment, supra note 17 U.C.L.A.L.Rev. at 1239-1243; Note, 53, supra Cf., g., Kelley, note 45 supra 26, cf. S.Cal.L. 126. e. note at 9. 905-907; Kelley, 26, supra note at 9- Rev. at 66, 10; Saxbe, supra note at 3.

642 cases,127 novo, the matter de mine ex

in” requests the contents amine of such legitimate agency deny will judges records in camera to determine whether warrant. or any part such records thereof shall be Congress apparently concurs in the be * * 130 withheld judges are competent lief to analyze the substance matters allegedly per Although the report conference taining to the national security. This expressed amendments a congres these attitude was unambiguously expressed that, expectation since sional “Executive passage of by the Public Law No. 93- responsible for departments national de 502, (1974), 88 Stat. 1561 which amended foreign policy matters fense Freedom of Act, Information insights 5 into what adverse effects unique (1970),128to, 552 alia, U.S.C. inter § as a public over occur might result disclo rule the Court’s decision record, particular of a classified sure * * * * * * Mink, v. 410 EPA U.S. 93 S.Ct. courts Federal will 119 (1973). 35 L.Ed.2d In Mink the weight substantial to an agency’s accord interpreted 5 U.S.C. 552(b)(1), § concerning the details of the affidavit exempted from the forced disclo disputed record,” status of the classified mandate of the sure Act those matters stated that the Mink unequivocally de “specifically required by Executive order was to be legislatively cision overruled kept secret in to be the interest of the to in respect with camera review and national defense or foreign policy,” not of a propriety document’s classi to allow review of Executive se to be judicially fication determined curity classifications and not respect even to al procedural “both with camera inspection low of a contested criteria contained in the Ex substantive bearing a security document classifica order under which it ecutive was classi tion so nonsecret matter Moreover, could be despite the fied.” fact that separated secret matter and or by the amendments vetoed disclosed. 410 dered at 81-84, President, primarily ground on the Congress 827. responded courts should not be forced to “the make amendments Section 552 which al amounts initial what classification 552(b)(1) tered Section to exempt from complex in sensitive and decision areas those disclosure documents which are: particular have no where exper tise,” Cong.Rec. (daily H10705 ed. specifically (A) authorized under crite 18, 1974) (Veto Message from the Nov. by an established ria order States), of the United both President kept secret in the to be interest of Congress overwhelmingly Houses vot defense or policy repudiate by that contention ed to con properly fact classified (B) pur overriding presidential vincingly to such Executive order.129 suant Although such a congressional veto.132 specified way in no that when binds us in the question expression also It discoverability adjudica of a Fourth Amendment document context issue, tion, “the court find that this vote of shall we confidence placed deter- also, Barker, States See Pub.L.No.93-502, 127. 1(b)(2), 130. § 88 Stat. 1562 supra (1974); note H.R.Rep.No.1380, supra see note 225. F.2d 12. description brief Freedom of For a supra H.R.Rep.No.1380, at 12. Act, Mink, see EPA v. Information 73, Cong.Rec. generally H10864- 79-80, 35 L.Ed.2d 119 (House 1974) over- (daily Nov. ed. H10875 nay, voting); 2(a), yea, 129. Pub.L. No. 32 not § of 371 vote Stat. ride 21, 1974) (1974); (daily H.R.Rep.No.1380, see ed. Nov. Cong., 93d id. at S19806-S19823 2d Sess., 4, nay, (1974), yea, 27 11—12 vote of 65 Cong. (Senate U.S.Code override & Ad- min.News, 1974, (conference p. voting). report). Agent, the Special judiciary Supervisory of the af- competence the in the Chief, Chief, the do, the Section judges own belief that in Unit our firms Director, Chief, the Assistant fact, capabilities the needed to con- have Branch Director, and the weigh pertaining data to the Associate Deputy and the sider and Director before it reaches foreign affairs national defense of Associate approval. for his nation. Director this the request, approves If the Director of current description Assistant Attor- sent to the it is then authorizing na for procedures charge of the Criminal ney General gives us wiretapping also tional Division, Petersen. He then for- Mr. according undue to hesitate reason request with his recommen- wards that the Ex “expertise” to the deference my for consider- and comments dation brings to each decision. Branch ecutive if, approve I If, ation. and Saxbe,133 Attorney General testi Former be in- can the surveillance request Security “National on Electronic fying peri- and then for a maximum stalled 2820[134] and before S. Surveillance months, I after which will three od of Laws and on Criminal Subcommittee only with I a renewal what approve of the on Senate Committee Procedures justification. Let me deem sufficient release, Judiciary” (Dept, of Justice approve I do not these you that assure automatically. 1974), practice that the admitted Oct. appar had warrantless see id. at past, requests abused in down been Numerous are turned ently proce current 6,135 my and then described reach desk. I long before 5— have withheld some autho- personally dures: and on at least one occasion I rizations all, First a for- request request for an exten- denied intelligence surveillance to sur- eign sion. vive, approved by must first be sev- supervision levels of different eral deference With due at 6-7. Id. FBI before it even reaches within the General, we believe Attorney former office, request Director’s and the together considered when description, very detailed informa- contain must turn high is a there fact with tion. General,136 Attorney office in the over decisionmak most actual request originates in an FBI If indicates occurs wiretapping office, proposal respect will be con- field ing desk of the reaches the by Agent, request the case Super- sidered before Attorney General, that he visor, Special Agent Charge and the rely on Headquar- predisposed field office. At FBI therefore his subordinates.137 request will be considered ters recommendations Attorney 133. Mr. Saxbe was General at counting acting Attorneys General, Not these statements. time of He tendered his res- eight Attorneys have been there General ignation, accepted, which the President years: Kennedy, Katzenbach, past 10 Messrs. 12, 1974, to be effective as Dec. of the date of Clark, Mitchell, Kleindienst, Richardson, his confirmation Ambassador to India or Saxbe, and Levi. successor, the confirmation of his whichever extremely appraisal 137. For an candid came first. See Weekly Compilation capabilities performance FBI’s in the field (Dec. 16, 1974). Documents Presidential intelligence gathering, Sullivan, see Personal appointment approved His as Ambassador was Observations and Recommendations on Priva- Senate on Dec. cy, Privacy Society (final report in a Free commentary For text on S. of Annual Chief Justice Earl Warren Confer- proce- a bill to establish standards ence of the Roscoe Pound —American Trial security surveillance, see dures for national Lawyers (Mr. (1974) Foundation Sullivan is Cong. (daily Rec. S23025-S23030 ed. Dec. Assistant the former Director of the 17, 1973). See also Cong. Rec. FBI, criminal, § 1138- charge intelligence, (daily 1974). ed. Feb. 4 security investigations). supra Kelley, 135. See also 16-17.

644 accept argument post to conduct blindly competent hoc review to cannot We General, who is chosen whether a surveillance Attorney determine is rea than In its lawyer as a rather Memorandum for the abilities sonable. his for diplomat, likely is more as a Ivanov v. United States acumen his denied, 881, the ana 419 judge138to have cert. 95 a federal than foreign 147, (1974) af sensitivity (respond to 43 L.Ed.2d 121 ability lytical ing petition evaluate recom to for writ of certiorari necessary to fairs Indeed, Circuit), even a there is the Third the Government took mendations. danger General, Attorney position since, judgment, an in its in other time and involved security reasonable warrantless national pressed activities, effectively delegate constitutional, will Alderman require not supervising anything does more than an task of aides; such was the case determination that wiretaps to his in camera the evi important al arguably less was obtained his dence from a reasonable statutorily duty mandated to su wiretap. argued: The Government though provisions wiretapping under pervise determining The task of whether the extent To the the Attor III.139 of Title purpose foreign of a surveillance was bases his decisions on ney General gathering intelligence clearly and recommendations data factual complex” margin nor is “the “too officials schooled career those rely great wholly error too on the in intelligence gathering, relations judgment camera of the trial court.” similarly informed in cam can be judges * * * Rather, in a field as delicate during post are hoc era, they often as foreign intelligence and sensitive prosecutions review in criminal judicial every there is reason gathering, simply do be cases.140 civil We in camera and without proceed disclo- expertise pos margin of any lieve sure. Attorney can com General by the sessed and detached at for the neutral pensate Id. at 14.141 sure, To be the Government bring to his judge that a titude making these arguments in support decision; given likely deference that restricting access to foreign intelli Attorney accord the Gener judge will gence information to the judge rather is no substantial likeli there request, al’s private than to the litigants. But the marginal expertise lack of hood arguments must be evaluated against legitimate in denial of re result will the realization that no one seriously de a warrant and frustration for intelligence gathering quests nies that at post least hoc re part on the proper view, under whatever standard of “rea Executive. sonableness,” is proper even for wiretaps Branch itself Finally, the Executive pursuant installed to the President’s for acknowledges the fact that courts eign powers.142 affairs If a court can Attorney General, In contrast to an See, a fed- g., Giordano, supra e. United States v. judge pre- has lifetime tenure and eral could note 416 U.S. 94 S.Ct. sumably develop expertise the field of L.Ed.2d 341. consistently affairs if resorted to for See, g., e. supra, U.S.App. cases cited foreign security wiretaps. authorizations - 83, 113, 120, D.C. at & notes particularly Congress This would be true if 83, 113, 120; 624-626 & notes see also note grant power limited the authorizations supra. Keith, supra certain courts cf. note also, 141. See Hoffman, United States v. Judges or to the Chief supra F.Supp. (noting at 506 Appeals. United States Courts of We also Government admission that national judicial notice of the fact that a take not in- subject post surveillance is hoc in camera judges number substantial back- review). grounds proba- in law enforcement that would particularly bly supra. them 142. See depend seizure cannot in search and substantially might error harm judicial it secured after formation post hoc in a the national occurs,143 interest;146 n why judges there no reason is should be case, a criminal or civil re review incompetent presumed to be before the exigencies day-to-day from the moved place. takes surveillance activities, a intelligence gathering court be might judgment harsher in its as to judicial Although competence per se is particular reasonableness of the sur thus argument no against prior rather pure practicalities if And are veillance. post hoc judicial review, than there may considered, being it should be remem be other factors actually behind the com that its the Government has choice bered petence theory which would suggest that a what to seek warrant judge as to a requirement warrant would frustrate usually a circumstance not legitimate Executive from,147 First, surveillance. post hoc judicial respect with present there may be a fear part on the review.148 Government the standard proba ble higher cause will be competence in a prior Actually, aspect of rather post hoc than judicial in a to the properly is directed proceeding. argument Even if this review, were true as a not practical judicial standard matter, clearly it is wrong before or as a occur after matter should of whether law, and we decline to To the place. base a takes ex decision as the surveillance legality to the nonjudicial policy factors constitute warrantless tent desiring security surveillances on rationale for in so Executive’s thin a reed. Moreover, information, we possible doubt it is telligence whether this fear144 is a practical realistic as cause would re probable matter. standard As the quote from Keith reemphasize We must judges are flect fact.149 indicates,145 appears say (pre-Keith 10, 24, infra, U.S.App.D.C. decision supra; 26 170 background expertise and factual 256, Executive at-& note 516 F.2d at 668 & note 256. presidential Huss, only supra 10, decision to in- not rendered See also United States v. note wiretap from warrant re- immune 482 F.2d at stall 46-51. totally it from quirement, also insulated but supra, -, U.S.App.D.C. See 145. 170 516 did, however, review; appellate court post hoc at 641. F.2d inspection). in camera conduct Indeed, suspects any judicial 146. one er- Ohio, supra 24, See, g., v. note 143. e. Beck proceeding in a warrant ror would be in favor 223, quoting Wong Sun v. S.Ct. U.S. at Note, supra of the Government. See note States, supra note 371 U.S. at United Nevertheless, prior 87 Harv.L.Rev. at 984. re- (“Whether require or not the S.Ct. likely prevent is view clear abuses that reliability particularity the in ments of might result from well-intentioned but over- may an officer act are on which formation See, g., zealous Executive actions. 23, e. notes stringent where an arrest warrant is ab more supra. surely stringent sent, they cannot be less than Indeed, nothing prevent there is obtained.”); is Wash arrest warrant where an seeking Government from a warrant from a U.S.App.D.C. ington judge second should the first one (1969) (dictum) (“in contacted F.2d refuse to authorize the surveillance. Cf. 18 subsequently fill obtained cannot formation 2518(l)(e) (1970). § U.S.C. lacking”). probable gap cause if subjectively being a course, than rather Of example, plaintiff may 148. For a civil have his worry in fact fear, asserted real forum, presiding judge choice of and a will be preserve the freedom attempt to silentio sub See, determined on g., a random basis. e. of evidence basis on the justify a surveillance 3-3(a) Rule of the United States District Court particular- problem is This therefrom. derived for the District of Columbia. proceeding, warrant is no ly there when acute See, Court, upon Municipal Camara v. the factors su- requirement no there 531-532, pra 387 U.S. at be memorialized acted which writing, 1727; recordings infra, con- actual at---, destroyed. throw civilian rule and institute martial Focusing timing judicial on the of in law, judge a would have approve any however, tervention, perceive we a surveillance. the Yet Government would fear that may actually second be behind approve have us a rule of law that would judicial competence argument: the even grant the President power the to himself applied same is prior standard if authorize surveillance to obtain informa post judicial proceedings, as in hoc an pertaining to routine commercial af a error before surveillance occurs is like fairs, so long they as “affected” an ly irreparable to cause harm to the na problem international as our balance of security, tional whereas error after it payments.152 And should be obvious may only occurs result in improper that as the magnitude of a se damages award of or release of a single curity threat approaches that of pre criminal defendant. assumptions emptive nuclear attack rather than that which this is upon are, fear based to say of a minor disruption trade, of prob least, questionable, and relate to the ability judge that a would erroneously

implicit belief that national security or deny the Executive requested war foreign affairs para information is of approaches rant the infinitesimal. import in mount all situations. The ar A third possible assumes fear gument erroneous inva behind the com petence argument, privacy individual prior sion re the one that is realistic, prevent could most is that a invariably view importance proce less warrant deny than dure will the erroneous denial Government the bene flowing information which fits from fact could have been most sur veillance could obtained from a be any reasonable barricaded wiretap. judicial ignoring review if there Even our belief that were only post error proceedings. hoc review in a warrant Since proceeding is surveil likely to be in lance often Government, would used for prose favor we find this purposes,153 cutorial foreign security and since view few information to indi viduals would unduly myopic. institute damage Not does it actions rele on the mere possibility gate personal protected interests by subject of an Fourth and First wiretap, Amendments unreasonable to the much warrantless rights,150 level second-class surveillance would it also supra. according See note 86 fourth amendment. But to the majority, peace-time [Butenko] President Kelley, supra at 4-5. decide, See note congressional can free of either con- review, judicial trol pri- what invasions of Butenko, supra vacy reasonable interest States of his See also J., (Gibbons, dis- conduct of affairs. 629-630 F.2d at senting): fact, argument 153. In this is one that has actu- Supreme a President According ally as an asserted affirmative reason been an internal position, faced with prior judicial abrogating review of such Lincoln’s sur- in insurrection, judicial subject infra, re- remains veillances. compliance with the agents’ at---, his view 516 F.2d at 648-649. its legality never have challenged.154 Disclosure of the secret information on However, every search and Executive seizure is which decisions to install a subject judicial review, properly wiretap arguably are made pose some security the fact that searches are not actu the threat leaks which might is a ally endanger reviewed mere convenience. To the national security that this argument the extent agents, is made lives of informants and or which an affirmative reason for frustrate the abrogating might proposed surveil procedure argument rejected itself. frustration of lance This power, it amounts to no more in the domestic context than an assertion Keith, the Executive Court in see 407 illegal Branch’s activities are kept best we find secret.155 We find argument such an persuasive is no more in the foreign to it be, say least, somewhat less than context. Since pro the warrant compelling. ex ceeding parte, conducted disclosure can be information restricted Thus, given judicial the fact that re- judge; personnel administrative can be view Executive-ordered surveillance provided the Government should he proper would be in any event after it or other clerical require assistance.157 occurs, competence argument no has substantial a merit as rationale Moreover, the Government abrogating the warrant procedure. judge from a the warrant seek can (2) “Security leaks”: It has been said it and discretion considers loyalty whose Indeed, general judges unimpeachable. maintained re confidences with President, ly have both as Commander- [t]he to sensitive information criminal spect as the in-Chief and foreign Nation’s organ for likely are be affairs, investigations,158 and has available intelli where the national se careful more gence reports services whose even curity are not the Keith at stake.159 And as is ought published to be * * * observed, al “Title III world. It would be intolerable that responsibility on courts, imposed ready has without the relevant informa with in connection such tion, judiciary review perhaps should nullify sabotage and trea espionage, as crimes actions of the Executive taken on in 2516(l)(a) (c), of which son, each properly § formation held secret.156 course, Keith, 2, may, See, supra g., lie about 407 U.S. at e. note 157. Government 154. 2125; wiretaps it 321, which wishes cf. for Nuclear Committee S.Ct. existence 92 However, requirement Seaborg, supra a note 149 Responsibility v. conceal. any n.12, pos- such U.S.App.D.C. F.2d at 791 n.12. deterrent at 388 463 an added should be Indeed, given sanctions will individuals al- deception, since the number of sible With a war- a stronger ready unearthed. decision to install nation- lie is in a if the involved U.S.App. supra, security wiretap, see requirement, is auto- secret surveillance al rant unlawful; requirement, matically no such at 642-643~&' with note at-& D.C. single deception oversight re- a if the Government’s additional even note argue marginal judge the warrantless poses risk still a miniscule it could federal vealed security one. a “reasonable” breach. surveillance a premised argument is on extent To the 155. See, Note, g., supra note e. Harv.L. 158. avoiding grounds for reasonable possibly more 982; Note, supra S.Cal.L. at Rev. expense, mini- burdens and administrative mizing 900-901. Rev. at leaks, security danger see -, at-, F.2d infra, particular, there is no evidence that 647-648, 650-651. at secrecy has been breach of there increasing in the number cases in which federal Brown, supra note v. States 156. United security judges have examined national infor- Chicago 426, quoting & Southern at F.2d post during hoc mation in prosecutions. review criminal Corp., supra note S.S. Waterman Air Lines See, notes 113 & 120 su- also 431. See S.Ct. pra. -, F.2d U.S.App.D.C. at supra, 170 622-623; supra. cited at note 123 sources may involve domestic well as foreign as obtaining than at evidence for use in Furthermore, threats.”160 ex prosecutions. long-term Such criminal cept for the possibility frustrating intelligence gathering supposedly less itself, tap security leakage most risks of to Fourth Amendment values offensive post will not be lessened a hoe review susceptible judicial and less review setting.161 Finally, important it is to re searches cont than are criminal the judge only satisfy is, alize need course, myth ext.166 It char “probable himself cause” to con acterize national as Thus, the surveillance exists. non-prosecutorial duct purely criminal sense; would in wiretapping where fact whole cases controversy concerning reasonable, legislation Government should be wiretap pre-Katz revolved showing to make this able without actu question whether around evidence ally disclosing majority vast in the course of a national se obtained available;163 indeed, it has even data should curity surveillance be admitted information disclose, which it does if the wiretap evidence had re into could withhold the name or other infor approval.167 prior ceived Incrim identify which would an mation infor evidence inating often uncovered destroy agent.164 mant or the cover through wiretap,168 cases and the dealt information-gathering: which have

(3) “Strategic” the issue Foreign constitutionality security wiretaps, even more of warrantless security wiretaps,165 security surveillance169 domestic demonstrate than collecting Branch likely to be aimed at will not hesitate to maintaining “strategic” intelligence in fruits of utilize the its surveillance basis rather continuing criminal obtain convictions.170 formation 407 U.S. at proponents 165. The of Title III believed that special advantage “the of electronic surveil- tap would be risk that a And even the 161. it is a gathering lance is that valuable tool for post may persist during review hoc frustrated intelligence strategic organized about crime continuing or if surveillance if is a other there it thus and that enables law offi- enforcement in- methods or are utilize similar surveillances picture’ cials to obtain ‘a look at the overall in- similar to those in circumstances stituted ‘prevention’ purposes.” Schwartz, for The Le- review. in the surveillance under volved gitimation of Eavesdropping: Electronic The “probable the national se- cause” in And 162. Order”, “Law Politics of 67 Mich.L.Rev. proba- curity strict as need not be as context 454, (1969), 468—469 and sources therein. cited ordinary criminal in the context cause ble supra. 166. See cited sources note 124 infra, investigations. See 170 at---, 516 F.2d at 656-658. See, g., S.Rep.No.1097, Cong., 167. e. 90th 2d Sess., (1968); Meyer, supra 67-69 Theoharis & with an And should a court be unsatisfied 163. note 53. relatively showing based on little infor- initial mation, come back with could the Government Many subjects 168. activities of the of national data; initial denial of thus a court’s additional security likely criminal, surveillances would be preclude need a search’s reasonableness purpose even if the of the surveillance were occurring is in if it fact rea- from the search intelligence purely gathering long- for or short- Indeed, appellees effect are mak- sonable. See, g., term national information. e. argument ing when claim that a similar (1970) (relating espio- §§ 18 U.S.C. 791-799 disapproval case this nage); (relating sabotage); §§ id. 2151-2157 fact based on the that those courts was other (relating treason, sedition, id. 2381-2391 §§ sufficiently informed were not courts activities). and subversive underlying See note the surveillance. reasons See, g., ' supra, U.S.App. 169. e. cases cited 170 supra. 16 111, note D.C. at-& 516 F.2d at 639-641 & Ventresca, See, g., 380 United States v. e. 164. See note 111. also note 240 infra. 741, 102, 108, 13 L.Ed.2d 684 85 S.Ct. U.S. (1965) hearsay may (warrant based on so be Domestic 170. threats to the national magistrate long purely of some of the prompt intelligence gathering informed may also support underlying Keith, supra; which See note circumstances su- surveillance. conclusion; identity 2, 318-319, of an informant pra affiant’s U.S. at 2125. 92 S.Ct. note Texas, disclosed); Aguilar su v. rejected need not be pra Court nevertheless 114, 24, abrogating 1509. at S.Ct. note 378 U.S. for re- warrant as a reason “strategic hind the information” important More is the fact that ration “[o]ffi abrogating surveillance, proce ale for purpose whether its cial be dure, the idea that the Fourth Amend investigation ongoing intelli criminal ment is limited to gathering, infringement risks remedies in the crimi gence anomalous, protected process, nal since it constitutionally privacy Keith, 320, suggest more supra, 407 innocent the indi speech.” U.S. protection the less his (emphasis added). privacy at 2138 In vidual in 92 S.Ct. merit.173 deed, ongoing nature of such surveil terests just increases its intrusiveness lance (4) “Delay”: frequently It is likelihood individuals will fear that electronic surveillance must asserted their conversations being over instituted, hastily be and that often heard. id. Nor are the Fourth compli which would' result delay privacy Amendment interests weak procedure a warrant could with ance the offensive search merely intelligence because of essential infor er loss mean prosecution.171 not lead to a criminal subsequent disastrous harm does mation many legal security.174 disclosure of activities Admitting Public highly embarrassing contention, be validity intimi of this we never could indeed, knowledge mere dating; nothing it to be more than find theless discussions have “private” been that warrantless electronic argument one’s insulting may extremely surveillance, many like other warrantless overheard short, premise searches,175 justifiable be- may exigent traumatic.172 320, 2125, guarantee protect against is to quirement, thrust of see id. at 92 S.Ct. al- such evidence. recognized though that such considerations a search showing probable cause neces- affect States, 171, supra note Abel v. United warrant, securing sary see id. at J., (Brennan, dissent- 80 S.Ct. at 705 2125. S.Ct. approvingly Municipal ing), in Camara v. cited Court, supra note 387 U.S. at 87 S.Ct. Court, Municipal su- See, v. e. Camara 528-531, U.S. pra note prohibition against premise of the The basic approval v. United citing Abel protection against self-in- was not searches 254-256, crimination; right it was the common-law J., dissenting), (Brennan, (1960) L.Ed.2d home, right privacy in his a man to Little, supra note of Columbia District indispensable ultimate essen- is one of 107; infra. note * * * concept of civilization. of our tials See, York, g., Berger supra v. New men, merely belonged to all to crimi- It nals, (Douglas, 87 S.Ct. 1783 U.S. at * * * 388 say suspected. To real or therein; J., concurring), sources cited right suspected has a man of crime that a 85, Note, supra Harv.L.Rev. at 986- note 87 protection search of his home with- Star-News, also, g., Washington e. 987. See May warrant, suspected but that a man not out a A-l, (President 16, 1974, col. 1 Nixon’s at protection, no such is a fantas- has of crime discovery allegedly he was wire- resentment tapped absurdity. tic campaign); during gubernatorial 1962 Little, 107, supra v. note District of Columbia supra. note 86 U.S.App.D.C. at 178 F.2d at 16- 85 Municipal Rights 17, approvingly in Camara v. Bill of Fourth most of the cited [the 173. Like 79, 530, Court, designed supra note 387 U.S. at 87 S.Ct. not to be a shel- was Amendment] criminals, protection Bivens Six Unknown Named also v. but a basic for 1727. See ter for Narcotics, sure, upheld Agents Bureau of 403 everyone; it must be of the Federal to be 1999, 392, criminals, 388, 619 91 S.Ct. 29 L.Ed.2d in order that it asserted when remedy effective, (finding (1971) for constitutional but it “reaches all be at all violations, despite alike, fact no of crime or not.” Amendment accused Fourth whether * * * imminent); Wyman pri- v. interest in indictment the individual’s criminal It is 317, James, supra 91 S.Ct. protects, note vacy the Amendment which appear (dictum). to fluctuate 381 not with that would invading officers. It is true “intent” 174. See supra. sources cited note 125 See preven- greatest and most effective that the supra. also note 120 against unlawful searches that has been tive See, g., Coolidge Hampshire, v. New su of their is the exclusion fruits from devised * * * pra 2022; 403 U.S. at note 91 S.Ct. evidence, strange 454 — but it is criminal Court, Municipal supra Camara note reasoning infer from this that the central in which it would be a prob- cases gainsaid It cannot rare circumstances. may be subsumed within the lem normal that even if national security surveil searches exception for conducted in exi- subjected to prior judicial ap lance is gent circumstances. proval, exigent a traditional circum exception stances should be available (5) “Administrative burden” on courts might delay irreparable cause where Executive: It has been suggest- Indeed, even Title provides harm. III ed that hours of up for to 48 warrantless surveil judges not burdened with [should be] emergency if “an lance situation exists grave responsibility of deciding conspiratorial respect with activities whether security] surveillanc [national threatening the national security inter are reasonable and necessary es to ful 176 However, to potential allow the est.” requirements fill information of for harm in exigent certain for circum policy and national eign defense[.]180 justification to serve as a stances for If this “burden” refers to imposition with a dispensing warrant in all national beyond a task capability contexts is to let the wag tail “judicial our judiciary, competence” dog. particularly And when ar- one re should gument indicate average feelings calls that our as to asserted has factor a duration for abrogating of from 70 to If, days,177 procedure. however, it is obvious it re- that even if a desirability wiretap fers to of removing warrantless stalled, must be hastily in weight responsibility judge making could be requested ad- with- ' mittedly difficult period in a brief to authorize decisions from our its continua shoulders, we can Finally, given respond tion.178 former Attorney that we grateful description are the sympathy General Saxbe’s which our role is procedures relating Nevertheless, viewed. departmental we are authorizations,179 mindful wiretap system ap it would point is the focal of all the that most conflicts pear wiretap installations are controversies of our carefully planned advance, society, and that the particular judge, of a though task goal general ly always where intelligence one, or a pleasant simple Thus in is to resolve gathering. the vast majority controversies in the delay will be those fairest problem, no manner cases and those 1727; generally during period 387 U.S. at be obtainable United Cir., Mapp, wiretap preparations being (1973); States v. 476 F.2d made supra. being sought. notes 89 & 93 authorization and Executive supra, U.S.App.D.C. at-, at 642-643. (1970), 2518(7) discussed note 176. 18 U.S.C. § Moreover, as the infra. Keith, supra note 177. See 407 U.S. at 325- States, supra perceived in Katz v. n.3, 334, (appendix S.Ct. 326 & n.21, U.S. at J., Douglas, concurring). opinion of See also holding to fall within the a surveillance supra. note 26 exception pursuit” to the warrant re- “hot 2518(7) (1970) (authorizing § 178. Cf. 18 U.S.C. quirement: “emergency when warrantless surveillance sit- Although Fourth Amendment does “[t]he respect conspiratorial uation exists with ac- delay police in the require officers not threatening the national inter- tivities est,” investigation would if to do so Course of an pursuant application for warrant if endanger gravely their lives or the lives of intercep- within 48 hours statute is made after 294, Hayden, others,” v. Warden begins). 1646, 1642, 18 L.Ed.2d [87 supra, U.S.App.D.C. -, 179. See 170 at 516 elec- likelihood that 782], little seems there F.2d at 642-643. possi- be a realistic would surveillance tronic urgency. fraught with bility 26, so Kelley, supra in a situation at 9. See also Unit note D.N.J., 66, Butenko, F.Supp. course, may exigent v. Of there be circumstances ed States 593, affirmed, Cir., danger F.2d cert. (1970), where imminent of loss of vital infor- 147, justify denied, dispensing 43 L.Ed.2d 95 S.Ct. mation would with the U.S. war- procedure, although (1974). rant a warrant should capable. he is U.S. which Faced with such values.” tional we can problems, recall Chief Jus- at 2139.182 Marshall’s

tice lament: D. doubts, whatever With with whatev- difficulties, attended, a case may er be analyzed Having those factors which it, decide if it brought we must be abrogation might dictate of the warrant We right before us. have no more for that requirement category of cases in jurisdiction decline exercise of upon based given, which is usurp then to that powers constitutional with President’s given. which is not The one or the conduct foreign affairs, respect would be other treason to the constitu- they that do suggest we find not Questions may tion. occur which we procedure actually would gladly avoid; would but we cannot legitimate intelligence gather fetter is, them. All we avoid can do to exer- ing functions Executive Branch. our best judgment, cise and conscien- Indeed, analysis that, our suggest perform tiously to duty. our exigent circumstances, absent no wire in the area Virginia, tapping foreign (6 Wheat.) Cohens affairs exempt prior judicial 5 L.Ed. 257 should Although argument scrutiny, irrespective may justification the “burden” be cast al ternatively as the surveillance or for the the importance administrative cost which will sought. Keith, and burden the information imposed on the As in we Branch if rest our it justify must in need decision on so broad a holding, we every request case181its since are only presented for a wiretap, in which a case accept argument foreign we decline with threats of grounded in expediency as a retaliation individual citizens basis for provoked resolving our constitutional abroad the actions of inquiry. As organization Court in Keith observed the domestic which was in rejecting subsequently wiretapped, a similar argument rather than in the do context, the wiretapped organiza mestic case in which “Although some added with, imposed will be upon tion acted collaboration or as the burden ney the Attor General, of, foreign justi agent power from which inconvenience is society in a free emanated.183 fied the threat protect constitu- -, supra, anything in the information 181. Cf. there Was 183. Q prior regarding JDL you F.2d at 646-647. obtained 1970 that indicated September security wiretaps the number If foreign pow- acting of a on behalf JDL periodically has as Government small is as er? see, Schwartz, asserted, on Reflections No, A sir. Legitimated Surveil- Electronic Years of Six anything in the information there Was Q Society lance, Privacy 50-51 Free it was indicated that you received that Earl War- (final report Annual Chief Justice espionage? engaged in Advocacy the United ren Conference my recollection. Not to A Note, supra 1974); 45 S.Cal.L. States plotting overthrow the violent inOr 19, 1971, n.51; Times, Q N.Y. Dec. at 901 & Rev. States Government? no substantial there should be col. Well, suppose con- could be I A complying expense involved in burden organi- degree anof matter of sidered procedure. are considera- If there the warrant carrying activities out like this zation wiretaps ad- bly than Government more governmental control fly face of they question mits, might are all whether one degree as to policy. It’s matter security purposes necessary for national be. or would would be there whether asser- candor the Government’s doubt authority, usurping When remedy proper Ex- for excessive tion that that. very be construed well through po- surveillance is ecutive-ordered you focusing your on Wicker, are attention But In- process. Q A See also Gross litical against engaged So- Times, that were vasion, the activities at § Dec. N.Y. officials, against not officials. American viet 6. col. officials. Arab A And addressed, opinion express no not to the brief General’s the In Solicitor may be in to, issues which Keith, in the Govern Court respect activities of for volved with eign strenuously foreign argued ment agents.186 or their powers se the national threats to domestic and curity that, were often intertwined Although appellants ap contend and foreign for surveillance warrantless since pellees admit187 JDL is a do certainly intelligence gathering should organization mestic with no Russian con be re sustained, warrants should nection, that fact does not mean security national surveill any quired appellants correct their argu rejected this Court The ance.184 assertion188that the warrantless surveil procedure by imposing ment here lance is automatically unlawful. In security wiretapping domestic Keith, was no evidence of any “[t]here scope of Point limiting the its decision. involvement, directly or indirectly, of a it, Keith before the facts ing to foreign power.” Here, by contrast, threat foreign that no clear made Court while there is no collaboration between involved: JDL quite the reverse— Russia— JDL’s activities did involve Russia in a requires instant case judg no [T]he confrontation with the United States. Thus this case does indeed involve the scope ment on the of the President’s power respect surveillance foreign affairs of this country and there foreign powers, activities within or falls fore outside the holding in Keith country. without this The Attorney into area it reserved for future General’s affidavit in this case states disposition. Although the type of in that necessary surveillances were “deemed volvement here was not anticipated protect nation from Keith, there no indication attempts of Keith organizations domestic that. intended to limit “involvement” to attack and subvert col the existing struc laboration awith foreign power. ture Government” Collab (emphasis sup simply oration was the most plied). There is no obvious ex evidence of ample of how a domestic organization involvement, directly or indirectly, of a could become involved in the foreign foreign af power.185 fairs of this country.189 concluding opinion, its re- In scope its emphasized holding: Keith underlying rationale requires that warrants case involves domestic nevertheless [T]his can take security. of national surveillance aspects We have before obtained officials. and Arab Soviet Q 321-322, 186. 407 U.S. at 92 S.Ct. at 2139. At acts that could be A related to Their acts point opinion this the Court also officials, particularly against American dropped supra, taken its footnote see overseas. those App.D.C. -, 636-637, at 516 F.2d at you evidence was no But there noted, Q though approvingly, the view that plotting they were themselves had that might warrantless be constitution- States overthrow violent “foreign powers al where are involved.” Government? n.20, U.S. at 322 92 S.Ct. 2125. concept, no. A As a total supra. 187. note plotting any inva- Or that Q a for- States on behalf of appellants the United sion See brief at 188. 20-23. eign power? n.8, See 407 U.S. 189. S.Ct. 2125. A No. (cid:127) example, if the For defendant Keith had Attorney (deposition at 48-50 General JA Mitchell). foreign power, financed the Court been acquiesced appel- Appellees involving have treated the case as they are a or- domestic contention lants’ ganization. foreign aspects of our national even appellees See brief for at 28. though power had itself taken no Keith, supra Brief for United States in case, country. action overt our See also United at 31-33. States note Hoffman, since the threat emanated supra F.Supp. note 506- Russia, question there is no powers affairs President’s must be our decision whether (foot- considered the surveil- U.S. at omitted). lance was lawful. See also note 189 infra. power protect organization serted place on domestic “domestic security”191 and the community no of interest with the shares substantial danger political power dissent that foreign “involved” in the case. could result from Costantino, assessing power. in abuse noted,192 such a Judge legali- As we have ty wiretaps concept the same of “affecting involved for case, although eign relations” context, a criminal is no less vague suc- and no subject abuse, less cinctly appropriateness ap- stated particularly when a organization reasoning of Keith domestic plying to our positive. has no foreign case: nexus with the power making threats this country. It would duty preserve, “to President’s [T]he indeed be anomalous to allow the defend the Constitution protect and engage Government in warrantless States,” not United [under surreptitious surveillance of activity, war basis to allow a sufficient Keith ] which would otherwise private remain purpose for the surveillance rantless protected, and merely because another It would likewise security.” “domestic government antagonized is by such ac then, the President’s held, tivity. To the extent such activity con foreign affairs would to conduct power crime, stitutes domestic there is no rea allowing warrantless be a basis son to suspect accord the protection less whose groups of domestic merely foreign because a power objects in any are not and conduct activities activity; the extent such activi foreign power. way controlled ty constitutes protected through con group, speech, a domestic there That would be violative of duct the inherent danger that the Govern country, may by laws of this internal ment' will use the protests foreign rela manner affect the indirect some powers or the fact that the speech “af and anoth country between this tions foreign fects” its relations to dampen be, reasoning under the er protests foreign to its policies. relations Michigan, a District of suf Eastern an example, exception such For cause to allow warrantless sur ficient requirement would have allowed greatest significance, Of veillance. all groups surveillance of warrantless the conduct which forms fact policies during our the con protesting involves of this case gravamen Vietnam, for the Johnson and flict crimes, there is and “domestic” were Administrations both of Nixon relation between the indirect the opinion in concurrence with opinion, of the defendants alleged conduct Vietnam, government of South country.190 foreign of this affairs making protests success impossible in Paris negotiation ful opinion was the Keith Much of military operations Vietnam more dif- as- vagueness of the with the concerned Schwartz, supra Cong.Rec. States v. note 190. United (1968), quoted Keith, suppressing wiretaps supra (memorandum and order note 407 U.S. at 92 S.Ct. 2125. ordering hearing) disclosure S.Rep.No.1097, for Alderman also supra note at 174 4). op. (additional (slip views of Senator Hart on Title III 917). of S. way Given the in which the activi- 314, 320, 191. 407 U.S. at 92 S.Ct. 2125. As many ties organizations similar may also be during Senator Hart worried the floor debate said to “affect” in some manner infra, 2511(3), U.S.App. on § discussed relations policy decisions of the D.C. at----& 516 F.2d at 659^ “affecting foreign relations” note& 219: appear test would similarly overbroad my As I read it —and this is vague. fear —we are President, saying motion, on his See, supra, 170 U.S.App.D.C. your could poison— declare —name favorite at---& notes 42 & dodgers, Muslims, draft Black the Ku Klux at 633—636 & notes 42 & 108. See also note Klan, rights or civil activists to be a clear supra. present danger to the structure or exist- ence of the Government. a severe posed argument thus there as much force in the ficult, security.193 long-term justifiable surveillance the threat strategic gathering pur information for poses Moreover, organiza domestic when organization when the domestic involved, only are the inter are tions yield no information can about “the in requiring a warrant in favor ests tentions, capabilities possible re arguments possible but the strongest, sponses other countries.” For ex procedure, which the warrant against ample, surveillance of the JDL could event, any have even less weak are provide no information as to action objection is less There force. which Soviet Government would it properly weigh judges competence self take. To the extent information on interests, judges since respective activities which antago criminal would activity with criminal familiar both Union nize Soviet could be obtained importance protecting sensitive surveillance, through a traditional war rights. For example, Amendment First well; rant would serve as to the extent suggest does not the Government on First information Amendment demon assessing the reason incapable we are which antagonize strations the So wiretaps question here in ableness obtained, viet Union could be it is doubt Department basis of State docu on the whether the ful Government could or available when which were also ments be able to any should take actions to originally instituted. was the surveillance prevent such “embarrassment.”197 Furthermore, during leaks likely proceeding are less to dis warrant Most important, given the way in foreign relations in a case such as rupt which any almost activity can be said to one, or present since domestic relate, at least remotely, foreign af has by hypothesis no ties with ganization foreign fairs or policy making, po Indeed, power. foreign if had scope tential of such an exception to the that JDL conversations been disclosed warrant requirement is boundless, and in an effort to being ap overheard thus a danger substantial to the values Government, a furor pease Soviet the Fourth Amendment was fashioned to domestically, have resulted but it might protect. although And we doubt that an such disclosure would have is doubtful exception to the requirement the Soviet Union to act to our caused should created even for the activities Moreover, in this case all detriment.194 foreign agents or collaborators, at essential information least such an exception would be more wiretap installation, in prompted “carefully delineated”198 than an excep cluding protests, the fact of Soviet allowing warrantless wiretapping already public in the domain.195 Nor whenever the activities of domestic See, g., Times, e. N.Y. uncovering secrets, Feb. American at at policy and the 3; Times, col. July 28, col. N.Y. foreign positions range at states on a broad (presidential col. 10 cols. 1-8 issues”). news con- international foreign ference on affairs). and domestic Recently there disturbing have been reve concerning lations secret 194. Even if a FBI breach of frustrates counterintelli gence programs endangers employed which in fact itself or Government improper practices. See, agents States, informers or United Statement of Attorney General threat is not William B. Report therefore different Saxbe from that in an Cointelpro ordinary on FBI (Dept. criminal situation. Activities of Justice release, 18, 1974); Times, Nov. N.Y. Nov. supra. 195. See note 23 1974, C27, 1-8; Washington Post, at cols. Nov. 18, 1974, C9, cols. 4-6. Butenko, 196. See United supra States v. 14, 494 F.2d at (Presi- 601. See also id. at 608 dent posture should be “aware of the of for- 198. See 407 U.S. 2125; eign supra, nations toward -, the in- 516 F.2d at telligence activities of countries 631-632. aimed groups specific incur the wrath a foreign information pow ment in protecting er or affect manner First and conduct interest rights of our affairs.199 Amendment of our citi- Fourth zens.

E. For example, the Third Circuit in Bu- we have that determined the Since tenko stated: authority with respect to the President’s primary the purpose Since of these foreign of affairs conduct does not ex is to secure foreign searches intelli- seeking judicial him from approval cuse information, a gence judge, when re- instituting surveillance, a before at least a viewing particular must, search subject the of the where surveillance ais all, be assured that this above was in organization domestic that is not the primary purpose its fact and that the agent acting of or in collaboration with a of accumulation evidence of criminal power, we foreign feel we should least * * * activity was incidental. briefly adumbrate our as to views the reiterate, Since, we the district court judge of the in such a role proceeding. * * * has that the intercep- found Although such a statement is not neces of tions conversations of [defendant] sary case, for resolution the pending “solely Ivanov were for the purpose of it would we believe serve the salutary foreign intelligence gathering informa- informing purpose of both the Executive tion,” they are reasonable under the members Branch and of the judiciary of Amendment. Fourth some the considerations which should Butenko, supra, v. guide their actions United States in the future.200 (emphasis added). Moreover, F.2d at And we the find such a statement par General, in his ticularly Memorandum in necessary light in Solicitor Response of the fact the Petition for a Writ of those courts that which have limited the Butenko, suggested in that judiciary of the Certiorari post role hoc determi that the Fourth re Amendment nation “reasonableness” of “[a]ll nation a pur is determination that the quires al surveillances have also sharp the surveillance pose intelligence is ly the circumscribed judiciary’s role in significance The full gathering.”201 balancing the actual need of the Govern- supra, see But 199. for the United States Memorandum at-, 634-636; Note, supra 516 F.2d at added) note in (emphasis Ivanov v. United at 993-994. denied, 87 Harv.L.Rev. cert. (1974). See also United States v. L.Ed.2d referring although Goldberg, to the Judge 605-606; Butenko, supra note 494 F.2d at post hoc problem in the context analogous elaborating F.Supp. at 943-944. primary review, circumstance the noted has quoted dissenting statement; the Solicitor General test the such a prompts to make us (who Judge opinion of Adams authored the development of for the It unfortunate majority opinion) en banc from Third Circuit’s intelligence foreign area of in this law the panel three-judge original in Butenko: the information the essential wiretapping that in such cases “reasonableness” test of [T]he legality action of executive on which relationship between be the location, should scope, du- subject, turns —the foreign President's affairs and the search be re- the surveillance —cannot ration power. or fruits Before contents places tremen- circumstance This vealed. proceeding, govern- a used responsibility for both national dous have to demonstrate sat- ment should rights constitutional and cherished judge that trial in camera isfaction acting largely judges, individual hands was, fact, related electronic their decisions of related ignorance of the foreign affairs au- Executive’s Chief permanently from insulated colleagues and showing thority. has been Once suggestions helpful criticisms wiretap made, a conclusion adversary process result constitutional, “reasonable," and thus opinions. explanatory publication hand, appropriate. On the other should Brown, supra note States government fail demonstrate satisfac- concurrence). See also (special F.2d Note, relationship torily the surveillance between at 994— supra 87 Harv.L.Rev. foreign power, President’s affairs and the only apparent becomes necessary this formulation to exercise an informed judg recognizes foreign one it fo when ment affairs.” Id. at 605-606 only one side of the Fourth added).203 cuses (emphasis balance, but also that “in Amendment recognize We telligence gathering” pursuant “probable indicated that has powers affairs is not President’s issuance standard cause” thereby limited situations such as depend may vary one which flexible enumerated in Title III —threats those type search involved and ing on aggression, attack subserved interests the Government intelligence counterintelligence there are factors which thereby.204 And activities.202 Third Circuit found proba President’s the determination of duties Command indicate and as represent the nation’s er-in-Chief conducting foreign,, for no cause ble foreign in implied affairs the re ative domestic, conducting a se for than less to an sponsibility “exercise informed the fact reflect should curity surveillance * * * judgment.” F.2d at 601. This re “the focus seemingly opened the door to sponsibility precise than that directed less be intelligence gath warrantless types conventional more ering that would relate remotely even to 322, 92 at U.S. at crime.” decision, minor, any however pertaining proper be to appear would Thus 2139. foreign relations: op to efficient “[T]he “proba is there where warrants issue to foreign of the Executive’s policy- eration catego certain believe to cause” making apparatus depends on a ble continu likely intelligence information flow of information. A court ries ous should surveillance, from obtained be wary interfering to this flow. * * * neither is crime evidence though government even a weighty [has uncovered.205 likely to nor sought acquiring] in interest information tap Brown, properly supra find that the States v. United would note the court * * 426, quoted illegal supra *. F.2d at (referring note 120 States, supra, foreign country’s for United encroachment Memorandum “in- added). nations). (emphasis tercourse” with other The Brown 14 n.13 language presumably “intercourse” court’s im- Compare supra, U.S.App. cases 202. cited presidential power plies a to conduct warrant- D.C. at---& notes 113 & electronic foreign powers less with surveillance whenever trade & notes at 636-641 113 & with 18 U.S.C. is affected. In our eco- 2511(3) (1970), quoted § see note 219 infra. But nomically interdependent world, power so Butenko, supra States v. United note concepts from attenuated traditional of nation- 494 F.2d at 608. security effectively grants al the President authority covertly oversee, blanche carte similarly Indeed, took a the Government being responsible anyone, held without operations scope and of its sweeping of the rationale view organization of almost business powers foreign intelligence purported States, operating particularly in this case: District with overseas those investments e. in- fulfilling responsibilities these safe- [to In guard Compare, g., Foreign vestors. Investment against foreign aggression nation Study Pub.L.No.93-479, Act of 88 Stat. the nation’s and execute to formulate and foreign policy] course, (1974) (authorizing Secretaries of Com- must, President Treasury study merce eign to conduct a of for- judgment. exercise an informed portfolio direct investment in the turn, This, implies power both a and a States, alia, analyze, United effect on inter its investigative duty all re- utilize security). disposal his in order to insure at will sources See, Almeida-Sanchez v. United him available to all that he supra 283-285, note 413 U.S. at necessary for him to is information (Powell, J., Keith, concurring); S.Ct. 2535 su- judgment. proper amake pra 2125; 407 U.S. note of Points and Authorities Memorandum Municipal Court, supra Camara U.S. at Support for Sum- of Defendants’ Cross-Motion 534-539, 87 S.Ct. 1727. mary Judgment Opposition to Plaintiffs’ Indeed, Summary Judgment if exemption at 14 even Partial there is no for Motion requirement 24, 1973) (emphasis added). (April See also the warrant for situations However, every rassing we do not believe “international incidents” occur be deemed to be “reasona- this counry when must hosts foreign search Olympic because Third Circuit’s merely teams or the Bolshoi ble” Ballet.206 This is some information rele- say not to met test President or Congress relating to foreign would any decision never have vant authority to obtain likely to be obtained from the affairs information—for example, by condi approach tioning governmental Such surveillance. patronizing of surveillances are “reason- these establishments assure the disclosure of legitimate in relation to the certain information both able their owners. Rather, it intelligence is to say of the Government need that obtaining such protected rights and the information through information installation of wire citizens,” taps S.Ct. at would be unreasonable, our particularly added); given the Butenko (emphasis test low ratio of expected relevant the Government’s need neither information to assesses nonrelevant information nor the information countervail- and the sough relative nonurgency of the information interests affected by a ing individual In this circumstance, t.207 Fourth protection search. Amendment under the Butenko test would “approach the evap sure, relating information some To be oration point.”208 paramount impor- affairs is of This example example, information also such as highlights tance—for an possible other factor relating to imminent attack or oth- that judges might consider in determining foreign power, a or actions whether a pro hostile er posed search would be espionage of activities di- reasonable. prevention to Since most of the crucial obtaining important military intelligence informa rected sought tion through hand, legitimate On the other there data. surveil defense likely lance is to which, relate to though information “rele- military is some or diplomatic affairs, decisions, foreign and to affairs would since the vant” sources of such information importance of minimal are to be to likely to appear be aliens whose primary allegiance example, is informa- to the Government—for the foreign power and who to the are diplomatical attitudes of hotel pertaining tion ly immune from may types restaurateurs various be of legal proprietors process, there may be a assuring greater to that no embar- justifica- “relevant” foreign subject is an alien or collab- subject could which set strict standards as to the probably orator, almost would issue warrants of conversations matter be overheard automatically of em- identity subjects for surveillance or the of of the surveil- where there is a installations other bassies lance. obtaining foreign of in- likelihood substantial judges It should also be noted that should regular on a basis. telligence information great accord deference to Executive assertions concerning importance of information tours of of scheduled 206. Cancellation See, sought. g., supra, organizations by Soviet cultural States -, Nevertheless, 516 F.2d at 642. “[t]he activity among which JDL influences long passed ‘foreign time has when the words on our rela- have exerted to was found tones, policy,’ uttered in hushed can evoke a F.Supp. at 940. See 363 tions. silence from either a reverential court or the CAB, man on the street.” Pillai v. 158 U.S. Moreover, poses particu- such surveillance n.34, App.D.C. privacy, given high larly acute threats Keith, supra n.34 See also note usage telephones of such and the of volume showing U.S. at 92 S.Ct. 2125. Some expectation general such conversations required be of the should Government that the course, depending private. Of on such fac- are sought, even information when its need is sought or its the information likelihood tors as favorably Government, viewed most is through being uncovered surveillance import justify of sufficient the intrusion of duration, judge scope might ap- a various surreptitious surveillance. relatively wiretap non-urgent prove for even a California, by significantly curtailing supra 208. Cf. the like- Chimel information tap. example, For ly he 395 U.S. at S.Ct. 2034. intrusiveness surveil conducting electronic newals based on the success of an initial for- surveillance, proposed aliens are the than period rather in 90- such when lance day pro domestic blocks on a citizens or forma when basis.211 subjects than short, a are involved. organizations merely are These some showing that the require could judge judge should take considerations hostile to is surveillance subject of deciding account in into whether it that alternative Government to authorize installation reasonable information, obtaining means surveillance This equipment. electronic questioning, subpoenas or routine FBI inevitably must somewhat be approach prove would exhausted been hoc, we but believe judiciary ad must or inconsistent with the unsuccessful role more active than that some take goals.209 gathering Certain information by the Butenko there suggested court if less intrusive means than there ly any meaningful protection is to obtaining surreptitious any rights meaningful re individual concerning politi domestic information on the Government’s ability straint economic, social events which cal, any power wiretap gather abuse tangentially affect nevertheless might “relating to” conduct of information foreign affairs. conduct foreign affairs. Nor should such a role judici role accorded the Nor does way hamper Government; any Butenko test ary by the allow for ade judiciary contexts the has shown other protection individual constitu quate judgments deference great rights. For the tional intrusiveness of a matters, foreign affairs and we be on wiretap certainly bears on whether part judici errors on the lieve constitutionally “unreasonable.” If result in likely to “unreasonable” ary are engaged JDL were one member activity than rather “unreasonable” de searches justify would wiretapping, intelligence data. nials Butenko test allow installation any phone use, wiretap might Finally, he of regardless we must observe that we do number of others not now delineate the procedures exact would also whose conversations be over must follow in securing if But even heard. Government preserving and warrants the records of sought institute surveillance on electronic surveillance. Since we will in faith, headquarters good dicate, JDL’s a in the next section opin of this might conclude tap court that a on the ion, Congress proce intended the phone home individual’s would serve the and remedies of Title dures III apply just purposes as adequate subjected Government’s to all surveillance by sought if information ly, particularly procedure,212 courts we do surpassing import.210 were not of protective More not consider what other stan over, a judge pass dards, could on the reasona whether stricter or moipermis proposed scope bleness of the or duration than currently sive those embodied in surveillance, and grant III,213 could re- Congress Title could' constitution- 2518(l)(c) (1970); S.Rep. § 209. Cf. U.S.C. 18 212. See also note 228 infra. 167, No.1097, supra note at 101. See, 2820, g., commentary e. S. text 213. and Cong.Rec. reported at 119 S23025-S23030 A 210. could also court assess whether there is 17, (daily 1973); 4062, 3440, ed. Dec. S. S. 93d adequate to believe is reason the individual Cong., (1974); 1864, 539, 2d Sess. H.R. H.R. organization or that he member of will H.R. H.R. H.R. H.R. 94th organization’s telephones. make calls over the Cong., (1975). generally 1st Sess. See Joint addition, supra. In 98 See note court 1; Hearings, supra note Subcommittee On particularize could what the authorized sub- Surveillance, 1; supra note Committee of Fed- ject approv- of the surveillance and limit its Legislation and the eral Committee on Civil actually pertaining to calls al Rights, Judicial Procedures for National Secur- subject. Surveillance, ity Electronic 29 Record of N.Y. supra. See 26 211. 751 C.B.A. ally provide for the conduct 28, 50, 53, of surveil- 938, 960, 963, cert. lance in this area. denied, 94 S.Ct. 125 (1973); L.Ed.2d under a statutory Ill appellants theory, could recover not only We have held that the elec damages (with actual liquidat minimum tronic surveillances involved in this case damages computed ed at the rate of $100 illegal because they were executed per day day for each of violation), but without a warrant. If this were a crimi damages punitive also and attorney’s Keith, case, inas we could nal end our fees, appellees could interpose only a However, here. this inquiry is a civil specific good narrow faith defense.216 damages, and suit for both the measure statutory remedy, This however, is limit damages allowable defenses ed U.S.C. 2520 (1970) § to eaves provisions will turn on whether the of dropping that is “in violation of this Title III of Omnibus Crime Control chapter [Title We must III].”217 there Act Safe Streets U.S.C. fore determine whether appellees’ ac (1970), apply case, 2510-2520 §§ this tions violated the statute as well as the appellants whether are relegated to Constitution. the remedies afforded under the seminal A. Bivens decision of v. Six Unknown Section 2511 of Title Agents Named the Federal III Bureau of declares “[e]xcept Narcotics, as supra, specifically provided chapter,” interception this 1999,29 L.Ed.2d 619.214 of “any Under the latter wire or oral communication” approach, only illegal. compensatory damages granting appellees’ allowed, motion for appellees would be could inter summary judgment, Judge Pratt pose “good defense,215 found general faith” as a mat ter lawof jurisdiction Title III premised would be “has no applica on 28 tion and cannot (1970), requires U.S.C. 1331 invoked § over with respect $10,000 to electronic see, amount in surveillances controversy, conducted pur suant v. Murphy, U.S.App.D.C. President’s Sullivan national security supra, -, (1970), 18 U.S.C. amending § recognized oral appellants provides: (1968), § As U.S.C. F.2d complaint stating their argument, after Any person wire whose or oral communi- upon as well rationale a Bivens based disclosed, intercepted, cation is or used in Transcript statutory grounds, Pro- see upon chapter violation (1) [Title III] shall theory nonstatutory ceedings at against have a civil of any cause action per- questions as to liabili- “presents difficult more intercepts, discloses, who uses, son or or infra, 11; U.S.App.D.C. 170 ty.” see at Id. procures any person intercept, other to dis- 659-660, 669- -,---, at F.2d 516 at close, communications, or use such (2) 673. any be entitled to recover per- from such son— See, g., Bivens Unknown v. Six Named 215. (a) damages less, actual but not Narcotics, liq- than of 2 Agents Federal Bureau damages computed uidated at the rate (1972) (on of Cir., remand from day day $100 a for each Court). violation agents or Supreme Bivens held that $1,000, higher; whichever have Bureau Narcotics no abso- the Federal (b) punitive damages; immunity protect damage to lute .them (c) attorney’s a reasonable fee and rights alleging other violations of constitutional suits litigation reasonably costs performance incurred. agents in en- their law good A faith reliance on a However, court order or duties. the court found forcement legislative authorization shall constitute to defense such an action a sufficient that complete any defense to civil or criminal agent ac- if the met a two- be established could brought chapter under this any subjective under comprised pronged of a standard law. other test; is, objective if can that the officer infra, See also U.S.App.D.C. believed, faith, good prove that he that both at---, at F.2d 669-673. and that such was lawful belief his conduct infra, See was in fact reasonable. 217. supra. See note 216 -, App.D.C. 516 F.2d at 669-673. F.Supp. at 943.218 ognition presidential powers.” authority to con .This on the belief predicated duct warrantless domestic security conclusion sur Mr. Justice veillances. See 407 302-303, was mandated U.S. at that id. at in Keith. opinion Powell’s Rejecting contention,220 2125. However, although there 942-943. language found the the Court the Act Judge Pratt’s merit to apparent some “essentially neutral” and deter opinion in find we position, “Congress simply presi left mined specifically address Keith, did not powers where it found them.” dential judice, only offers sub the issue itself “Congress 92 S.Ct. at 2130. Id. proper as to the res guidance ambiguous intended make clear that the Act problem. of our olution legislate respect did simply na “comprehensive” noting security surveillances.” Id. at After national III, relying at 2131. Besides on of Title ture argu proviso, the Government’s context of the language and addressed Keith 2511(3), the so-called grounded interpretation its on the Court that Section ment III,219 proviso” of Title security legislative history Section “national opining affirmation or rec- congressional 2511(3).221 Finally, one awas (cid:127) apparently Judge except necessary Pratt treated the com- disclosed as is imple- solely plaint statutory power. as if it were based ment that grounds. supra, U.S.App.D.C. As noted Pratt, Judge following appellees’ brief, in- 605-606, at-, appellants F.2d at fact 2511(3) dicates that Keith states that § consti- complaint grounded statutory their on both implicit recognition tutes “an that the Presi- Thus, given and- constitutional theories. holding our powers specified dent does have certain areas appellees unconstitutionally, acted security].” national F.Supp. [of appellants have stated a cause of action Keith, quoting supra, 407 U.S. at appropri- whether or not Title III remedies are clarification, 92 S.Ct. 2125. For it should appellees may ate and whether or not estab- (cid:127) be noted that this was not in the context of lish meritorious affirmative defenses. assessing congressional attitudes toward a requirement procedures warrant regulating or other 2511(3) (1970), 18 U.S.C. § the so-called any powers substantive the Presi- security” proviso to Title III “national might possess; rather, dent it was in the con- Omnibus Crime Control of Safe Streets Act acknowledging text in that the President does (1970), pro- 2510-2520 §§ U.S.C. powers fact substantive in the field of vides: supra, Cf. affairs. Nothing chapter contained in this [Title at-, 516 F.2d at 615-616. 605 of or in section III] Communications * * * 221. See 407 U.S. at 92 S.Ct. 2125. Act of 1934 shall limit the consti- quoted solitary The Keith Court power Senate tutional measures as he deems President to take such expressly concerning 2511(3): floor debate necessary protect § potential actual the Nation attack “Mr. HOLLAND. . . . The section foreign power, or other hostile acts of a [2511(3)]from which the Senator has [Hart] foreign intelligence obtain information affirmatively give any power. read does not essential to the deemed ed of the Unit- affirmatively conferring . We are not protect or to in- upon power the President. We are sim- against foreign intelligence formation activi- ply saying nothing herein shall limit anything Nor shall ties. contained in this power as the President has under the chapter be deemed to limit the constitutional certainly . . Constitution. . We do not power the President to take such meas- grant thing. him a necessary protect ures as he deems to nothing “There is affirmative in this state- United States overthrow of the ment. by force or Government other unlawful President, “Mr. McCLELLAN. Mr. we means, against any other or clear and trying understood make it that we are not to danger present to the structure or away existence anything take him. any The contents of Government. “Mr. HOLLAND. The Senator is correct. intercepted by communication wire or oral President, “Mr. HART. Mr. there is no authority of the President in the exercise of expand by language intention here to this a may foregoing powers be received in evi- power. Clearly constitutional do so. we could not trial, any hearing, proceed- dence in or other ing interception where such was rea- though “Mr. McCLELLAN. Even intend- sonable, ed, and shall not be otherwise used or we could not do so. hardly expect a clearer expression “could in all cases. Introducing this discussion, congressional neutrality,” con that specified “we do not hold that the cluding the floor debate sec that on the type same procedures standards and “explicitly nothing indicates that prescribed by Title III are necessarily 2511(3) intended to or expand was to this applicable case.” 407 § U.S. at presiden or to whatever contract define at (emphasis S.Ct. added). powers existed in mat Adumbrating tial surveillance some “potential dis- affecting security,” the national id. ters tinctions between Title III criminal sur- at the Court held veillances and those involving domestic id., “the statute is not the measure of security,” that suggested Court authority executive asserted in this Congress may wish to protec- consider added). (emphasis ease.” Id. The Court tive standards for the latter which dif- thereupon proceeded scrutinize prescribed fer from those already * * * validity of constitutional warrantless specified crimes in Title III. electronic surveillance based on domestic It be that Congress, for example, security. Having to the national threats judge that application would concluded that such warrantless surveil affidavit showing probable cause need unconstitutional, the lance was Court re not requirements follow exact iterated its earlier statements “our but should allege § other circum- required a warrant decision [that more appropriate stances to domestic language does rest not] cases; the request for 2511(3) any section III other of Title § prior court could, authorization in sen- of the Omnibus Crime Control and Safe cases, be sitive to any made member * * That * Act of 1968. Act does not Streets specially designated court attempt to define delineate pow and that time and reporting re- ers of the President meet domestic quirements need not be so strict as security.” threats to the national Id. at those § 322, 92 S.Ct. at 2139.222 The above paragraph not, does course, attempt guide the congres- Although not by necessitated its deci- judgment sional but rather to sion, deline- opinion later its indi- present scope ate of our opin- own cated, upholding as it had in the warrant We do ion. not attempt to detail prior requirement such cases as Ca- precise standards Court, for domestic Municipal supra, mara that the warrants more than our procedures decision standards under the war- sought in Katz to set the requirement refined rant need not be same re- security wiretap by was to However, be first determined . . . we are “Mr. HART. analyzing specific whether it fell language within agreed be should not re- 2511(3), interpreted language of since he intending grant § Ti- any authority, garded as security” render on, tle III to all other “national authority put bug including that the illegal; only wiretaps then should the constitu- now. President does validity 2511(3) exemption President, § tional addition, as I think our “In Mr. generally 335-344, clear, See faced. nothing exchange in section makes J., (White, concurring) (particularly S.Ct. 2125 attempts 2511(3) to define limits of even 2). approach, Justice n. Under White’s if the security power un- the President’s in this case were deemed not law, always present which I have found der encompassed by 2511(3), the § 2511(3) remedies of extremely vague . . . Section clearly apply; if the Act the surveil- merely says if the President has 2511(3), deemed to fall within § lance were our way power, exercise is in its no affect- then analysis Congress prior indicates could ed title III.” constitutionally prior ju- immunize it from quoting 92 S.Ct. at required review dicial the Fourth (1968) Cong.Rec. (emphasis sup gave Justice no Amendment. White indication Court). S.Rep.No. plied by Keith also whether, situation, 94; infra, as to latter the reme- supra, note 170 U.S. Title III would dies of be available. App.D.C. at-, 516 F.2d at 663-665. majority, the Mr. Justice In contrast legality the that of a national White believed procedures standards would be con for the quirements specified criminal indicating although strued as that Title which now surveillances constitute Ti- III requirements currently apply do hold, do however, III. We tle that prior judicial approval required is President must comply where the with type security the domestic requirement, surveil- warrant Congress the could in lance involved this case and rigorous that provide procedures less that approval be in made accord- constitutionally acceptable. would still with ance such reasonable standards as interpretation by the is reinforced This may prescribe. Congress the early discussion was writ fact that Id. at 92 S.Ct. at 2139. response to Government’s ten as a 2511(3) that affirma Judge Pratt, argument contrast Section we believe recognized approved Execu tively these statements are susceptible of at na to conduct warrantless power two alternative tive interpretations. least To sure, the Keith language could be in- surveillances, security was tional which totally terpreted ousting Title III question actually presented in only whenever national security surveillance Court not Keith. The was forced involved. broad language early in criminal prosecut circumstances that opinion support could position, whether, ion224 to decide given the con the later discussion on warrant stan- requirement stitutional that a warrant could be dards construed as indicating be obtained security domestic surveil although Title III requirements do lance, it should be compli obtained in currently apply, Congress reg- could Title ance with III.225 And although the security ulate national wiretaps if it so ambiguously Court commented on that Nevertheless, desired. another interpre- problem, it apparently deliberately cast of Keith support tation would the appli- discussion terms of “standards and cability of Title III in all cases where a procedures,” see 407 U.S. at 92 S.Ct. required. warrant provided which are and available in Under this latter interpretation, the Title III. This was in contrast marked early language of Keith223 would to its discussion of the applicability of question refer whether Execu Title III question, warrant was tive free of the warrant require presidential was cast in terms of “pow ment in conducting national security ers,” sur as to which the Court found Con ,the veillance; later discussion of gress warrant had asserted its “neutrality.”226 -, U.S.App.D.C. at supra, concludes cle “author in which 2511(3) ‘Congress what to a § took amounted at 660-661. F.2d position of neutral noninterference on the Alderman, 224. Under evidence derived from question constitutionality warrantless wiretaps illegal that are under a security wiretaps —whether authorized national statute the Constitution —must be Moreover, disclosed ”) (emphasis added). we President.’ supra. criminal defendant. See note 14 giv- Court doubt that Thus, once the Keith Court held the surveil- guidance did as it on the standards en as little in that to be lance case unlawful under governing security procedures Amendment, it Fourth did not have to address if it was believed Title III question it whether was also unlawful un- operat- applicable and the President now Title III. der ing that no in a If the believed vacuum. statutory regulations guide magistrate Indeed, argument Depart- at oral Justice security proceeding warrant an internal attorneys acknowledged subsequent ment effect, forthcoming, and none need be decision the Government ceased to the Keith appropriate speak been would have surveillance; nonstatutory internal all clarity for the benefit of lower federal more recogni- unclear whether result was it is the Executive Branch courts statutory correctness of our con- tion of the concerning the contours of the Government merely skepticism concerning the struction hand, If, proceeding. on the other information-gathering productivity of domestic indicating Congress merely Court was activities. constitutionally procedural relax the as- could n.7, regulation wiretaps pects con- at 307-308 of its 226. See also 407 U.S. surveillances, quoting there (approvingly review domestic law arti- text of at 2133

663 * * * shall the constitutional limit we do not believe the Keith Since 227 held case the standards proce power of President” to take the ac of Title III inapplicable dures be necessary tions he deems in the field of purported national when sur national security.230 Since Section involved,228 veillance we must look to 2511(3) merely a disclaimer that “con language legislative history of actions the President are stitutional” 2511(3) to determine congression Section statute, invalidated under the to be in its intent enactment. al Section Congress assume that is reasonable it 2511(1) unequivocally declares prohibit “unconstitutional” intended “[ejxcept specifically provided in this surveillance, which would “any chapter,” interception wire or chap “in violation of this therefore illegal.229 oral communication” is Section comprehension however, 2511(3), within states ter” Thus, Title III.231 damages provision “[n]othing contained in this chapter necessity curring part elaborating possible dissenting part) (com- for was no alter- in great procedures menting majority opinion), native detail. on we find no rea- any son to infer such constitutional limitation Philadelphia v. Mitch Resistance 227. See also congressional power, particularly given 139, E.D.Pa., (1972); Kinoy ell, 147 58 F.R.D. powers Congress’ own in the areas of 379, S.D.N.Y., Mitchell, F.Supp. 331 382 v. See, g., affairs and interstate commerce. e. appellants agree (1971). We cannot nn.2-3, 407 U.S. 338-340 & 92 S.Ct. 2125 States, 408 U.S. 92 S.Ct. v. United Gelbard J., (White, Butenko, concurring); supra, 494 Evans, (1972), and In re 179 33 L.Ed.2d J., (Gibbons, dissenting). F.2d at 627-637 (1971), 452 F.2d 1239 146 also, Youngstown g., e. Sheet & Tube Co. v. denied, cert. 92 S.Ct. Sawyer, supra note 343 U.S. at (1972), ques dispositive ot tne L.Ed.2d J., (Jackson, concurring); S.Ct. 863 29 Record applicable Ill’s remedies are Title tion whether N.Y.C.B.A., supra note at 760-761. involving unconstitutional Execu in situations 2511(1) (1970) (emphasis 229. 18 U.S.C. § add- for national securi conducted tive surveillance ty ed). involved the issue of Both cases reasons. (1970), pro U.S.C. § whether 2511(3) (1970) (emphasis 230. 18 U.S.C. § add- derived from an unlaw use of evidence hibits ed). wiretap, forms the basis for a valid defense ful supra, 231. See 170 U.S.App.D.C. at-& note brought contempt proceeding under 28 in a F.2d at 659-660 & note 216. This jury 1826(a) (1970) against grand wit § U.S.C. arguably interpretation renders the last sen- questions posed to answer who refused nesses 2511(3), supra, tence of see note 219 redun- § questions claimed the to them because light of 18 U.S.C. § dant in Sec- illegal upon surveillance. Both were based prohibits introduction into evidence tion 2515 applies, without distin held that § cases intercepted of the contents of communications type guishing of surveillance involved. derived “if the and evidence therefrom disclo- that, argue Appellants since “the basis for the in violation information would be sure of that apparently was ‘national surveillance security’ chapter.” interpretation Under the of this ” cases, it can in both be inferred that text, 2511(3) propounded provision § security surveillances are sub national even thereby of its own force interdict intro- would procedures ject of Title and remedies through duction of evidence obtained unconsti- appellants at 42-43. How brief III. See ever, tutional Executive-ordered national court the Gelbard Court nor this neither However, surveillance. the last sentence of presented with an assertion that was in Evans not, fact, 2511(3) super- be rendered § inapplicable because national se § authorizes introduction of fluous. That clause Indeed, wiretaps curity were involved. in Gel- “only where evidence from such surveillance explicitly had denied bard the Government reasonable, interception was evi- [the place, any had taken and in be otherwise used or disclosed shall not dence] except yet had not made ei Evans the Government necessary implement Presi- [the as is negative response or a ther an affirmative security] power.” As the Su- dent’s preme their conversa witnesses’ assertions Keith, merely this was court observed illegally overheard. had been tions measure, precautionary “intended to assure suggested Although it has been lawful the President conducts sur- that when Congress might unconstitutional to re- pursuant power to whatever he viellance— possess power engage inherent Executive strict admissible.” 407 evidence is —the surveillance, see, n.6, in warrantless Thus actual- there is at 306 Butenko, supra interpretation 494 F.2d at ly redundancy States under our no C.J., (Seitz, (majority opinion), illegal con- is directed at Exec- § Title III since 2515 I foreign powers. As procedures of Title to threats from recall, if III were even case, Katz some of in the recent security wiretap- national inapplicable to of the remedies of Title III should Justices ping, President has doubted to unconstitutional exercises of apply the Constitution at all under power. power presidential bugging in na tapping engage An analysis legislative history security without a court cases tional of Title III also indicates that it would 2511(3) merely says Section order. to interpret reasonable Section power has such a the President that if 2511(3) as a statement that the question bug order], a court tap and without [to reserved Katz232 should be left for in way its exercise is no affected then judicial resolution, that, but to the ex III.235 title tent President does not have the con power stitutional engage in warrant- Moreover, the interchange begun had activities, less surveillance the proce query Senator Hart’s as to whether dures and remedies of Title III are fully 2511(3) the second sentence of Section operative. This interpretation is fully granting was President unlimited consistent with the Keith Court’s under readily authority abusable “in areas standing of the legislative history of Sec do not come within our traditional 2511(3) and the two-decade struggle security.” of national Cong. notions Congress concerning wiretap legisla particular, In Rec. he was tion. by the fact troubled the statute colloquy In the- between Senators might interpreted allowing as McClellan, Holland, Hart, which the to authorize President installation of a Court cited as the definitive Keith state wiretap organization on “an that is advo congressional enacting ment of intent in cating the withholding of income tax 14751,236 2511(3),233 interesting Section it is to fo see payments,” id. merely be paragraph cus on a the Keith Court con cause the President believed such an or crucial, but which it quoted only sidered posed a ganization present clear and Hart, part.234 summarizing in the Senator danger to the structure or existence of n interchange concerning Section effect, In the Government. Senator 2511(3), stated: inquiring was as Hart to the substantive scope 2511(3), of Section proce what clear, makes exchange I think our apply in areas [A]s dures covered nothing 2511(3) even at- section proviso.237 response, Senator Hol the limits of to define tempts reassured him that the provision land security power un- President’s “simply saying that nothing herein law, I always which have present power der limit such shall as the President extremely vague, especially in found under the Constitution. has If he does threats, opposed domestic power not have the any specific do lance; directly presented main thrust of the the Court was not while the utive surveillance 2511(3) question procedures directed at lawful with the of what other § last sentence compensatory were mandated or what surveillance. reme- opposed suppression dies —as evidence proceeding -, appropriate a criminal supra, U.S.App.D.C. 232. See when —were illegally; the Executive passed acted F.2d at 611. Title III was less than one year after Katz was decided. (1968) Cong.Rec. (emphasis Compare supra. added). id with note 221 Indeed, only explicit this was the floor de- concerning 2511(3). supra. § bate See 407 U.S. at 236. See also note 191 n.7, 2125; supra. 306-307 & note requirement 237. The warrant itself was inti- mately The omission question was understandable since associated with the ques- powers. scope the Keith Court was faced with the of the President’s substantive supra; tion whether warrant had to be obtained as note 52 at-& prerequisite to domestic 516 F.2d at surveil- 664-667 & note 240 .infra. five power to wiretap thing, we need not be warrant, Id. without a concerned.” and the substantive added).238 scope of such a pow (emphasis

er if in fact existed.239 It would thus appear comprehensive Congress the otherwise Given na- merely intended III, if the ture of Title we believe judiciary ascertained that of Senators Hart and Hol- President had statements power constitutional Congress wiretap that primari- land indicate was without a warrant for certain avoiding purposes ly any legisla- concerned and in certain circumstances, expression tive about an inherent Execu- statute would not apply to them.240 “power” parallels 238. This use of the by way power. term of constitutional We could by Keith, wanted, that used in making not do it if we and we are presidential “powers” appeared where attempting any to be not clear that we are such proce- contrasted with the “standards foolish course. pursuant powers dures” to which point those Mr. PASTORE: That is the I make. to be supra, exercised. See U.S.App.D.C. “deemed,” you just No matter what is can- at-, 516 F.2d at 661-663. powers away from take the President constitutionally say- that he has. All we are Indeed, colloquy Senate indicates that ing is that we do not intend to do it because congres- proviso was included because of anything that is in the bill. Congress as to whether sional doubts constitutionally could Cong.Rec. (1968) (emphasis added). any power. limit such inherent only do these Not Congress statements indicate that example, find For we these statements in the statutory did not intend to create a dialogue Hart, crucial between Senators Hol- requirement where there is no consti- land, and McClellan: requirement, tutional warrant see note 46 su- * * * I do not want Mr. McCLELLAN: pra, Congress but also indicate that was any power from to detract to undertake deferring judiciary answering already has. I do not think we President Katz, question comprehen- reserved in while fact, anyway. by legislation so I could do legislating sively per- to the full extent of its However, could not. what we know we power. constitutional ceived We doubt that keeping spirit here is in with the have done these serious constitutional concerns would permitting the President to take such ac- expressed by Congress have been if it were necessary tion as he deems where the acknowledged presidential that * * * threatened. is Government subject prior judicial scrutiny was only and the specific pro- was the issue standards and * * * Mr. HOLLAND: [Section governing proceeding. cedures the warrant says, 2511(3)] simply and I will not read the note 244 infra. See also certainly says part it because that first Report nothing limit the 240. The Senate shall President’s con- on the Omnibus Crime * * * power simply 1968, which, Control and Safe We are Streets Act of stitutional saying observed, nothing herein shall limit the Keith Court see 407 U.S. at n.7, power explicit President has under the is as the Consti- not as as the * * * followed, floor debate which tution. but which is the report concern!-g III, committee Title section-by-section analysis: in its stated President, Mr. McCLELLAN: Mr. we trying 2511(3)] that we it understood are not make is intended [Section to reflect a away anything from him. take distinction between the administration of do- legislation constituting Mr. HOLLAND: Senator is correct. criminal mestic danger to the structure or existence of the * * * foreign Government and the conduct of af- 2511(3) Mr. HART: Section nothing fairs. It makes it clear that says merely if the President has such a proposed chapter by or other act amended engage tapping power bugging [to proposed legislation is intended to limit security cases without a court or- national power of the President to obtain infor- way der], then its exercise is no affected by * * * protect mation whatever means to III. I am now sure no title Pres- United States from the acts of a just political ident thinks because some power including potential actual or attack or country fits, giving in this movement him foreign intelligence activities, any other agreement read this as an he could that, from us danger to the structure or existence of the motion, put tap he could his own Government. Where affairs and in- on. involved, proposed ternal * * * system of court ordered electronic surveil- HOLLAND: Mr. negating lance envisioned for simply intention the administration of We are legislation anything has domestic criminal way the President not intended take a constitutionally immune were rendered is, applicability That statute procedure of the warrant upon further contingent Amendment. the procedures and Fourth pronouncements, of the statute were to com- remedies Moreover, wiretapping interpretation pletely occupy field ex- particularly plausible Title III is powers scope extent the President’s cept to the applicable. areas necessarily The two constitutional, the surveillance is when can ev- though however, overlap. their Even may, idence derived therefrom be introduced into supra, place U.S.App.D.C. the United within take evidence? activities party -, -, 616-617, 648; Communist domestic F.2d at infra, groups -, instruments remain front its foreign policy 516 F.2d at (Commu- foreign power Commenting light of a 666-667. on this issue expectation Activities Party, Subversive its U.S.A. nist surveil- Board, prior judicial U.S. 1 lance would be review, [81 immunized from Control Consequently, Report merely (1961)). indicates that if 625] L.Ed.2d foreign any affairs President acts right of under the field constitutional fall within chapter. proposed proceed warrant, scope of without a then the fact that outside Yet, statutory provisions violations of See certain involve afford activities criminal him an al- their legislation. receiving prior Abel v. ternative of determinative of the and the but authorization is domestic United L.Ed.2d proposed States, legality S.Ct. U.S. 217 [80 of the provisions admissibility Rather, These of its fruits. 668] it is chapter regarding among and in- national one factor the circumstances that security provide assessing the con- must be bleness of a thus considered in the reasona- ternal tents of wiretap any in- pursuant communication wire or oral not undertaken authority Particularly by the President to a the of warrant. tercepted may when it is noted that any judicial Report provisions evidence cautioned into received be of Otherwise, hearing. necessarily applicable Title III are not or administrative in the the trial seeking security contexts, affairs or the overthrow internal individuals including agents Government, statement can be seen to be consistent with the them, interpretation, supported history cooperate by legislative with powers those who other policy considerations, legally when accountable be held could not see activity was un- supra, their unlawful at---, U.S.App.D.C. evidence 516 F.2d pow- this 662-666; infra, to the exercise of incident covered er only ---., limitations if the The the President. comply President dure, recognized proce-' the inter- must on is that with the this use [sic] according provisions he must based on an do so ceptions reasonable be deemed taking Title III. judgment consideration into hoc ad all of individual of the of the and circumstances facts It should also be 2518(7) observed that in § case, is but the test Congress up authorized to 48 hours of war- (Carroll v. United itself Constitution 267 U.S. rantless reasonably surveillance when it is de- 280, 69 L.Ed. 543] 132 [45 emergency termined that “an situation exists judicial possibility that a au- (1925)). The respect conspiratorial activities threat- interception could or for the * thorization * * ening the national that re- pro- under the been obtained not have could posed quires a or wire oral communication to be in- chapter one factor would be tercepted terception authorizing before an order such in- preference judgment. should be No a diligence can with due be obtained alternative, this would * * given since to either approval Yet court had to be provi- very power this limit the tend to sought subsequent to installation of the sur- dis- recognizes to be deemed is not sion veillance for it to be lawful under the statute. turbed. first, might At appear this section unnecessary S.Rep.No.1097, supra (empha- at 94 if the President from the totally was to exempted be ambiguous added). procedures III, This rather statement sis is not inconsistent of Title since there interpretation necessity with the exempting no him from Report ap- 2511(3) provisions ever, elucidated in text. The subject. to which § he is not How- pears expect 2518(7) that there would be no war- any § is far broader than consti- placed requirement exception presidential on the President’s na- tutional surveillance; rant surveillances, coverage “any since it contem- its investigative tional plates extends to post officer, hoc determination of reason- specially law enforcement by prosecuting attorney designated proceedings. Attorney made in criminal ableness will be General principal analysis 2511(3) Report’s any thus con- § State or subdivi- explicating congressional acting pursuant sion intent thereof centrates concerning to a statute of statutory problem 2518(7) that had be- that State.” Section ry is thus a statuto- set, Congress recognition general before Katz: if courts doctrine of exi- protection. proposed Amendment Since Katz flow of had of the ebb light question prior reserved whether judi legislation in the wiretapping field over authorization cial was constitutionally years. prior As we indicated safeguard against mandated unreason above,241there was no pro constitutional security surveillance,243 able hibition non-trespassory wiretap was reasonable Congress to avoid ping although until Section 605 of that constitutional thicket until the Su Federal Communications Act of 1934 preme spoke fully Court more on the prohibited use of evidence derived from President’s asserted inherent power such surveillance prosecu in criminal wiretapping conduct warrantless in fur During tions. period, numerous bills of his constitutional responsibil therance Congress were introduced in to authorize Indeed, the proviso probably ities. wiretapping and use of evidence and merely to avoid included a challenge therefrom; obtained fruits however, the statute as unconstitutional limita they were all defeated because of bitter powers.244 tion on question divisiveness over the whether enact, Congress should as a statutory Finally, there strong precondition policy to admissibility, consid require which guide erations us in prior ment our approval determi congressional nation obtained for the intent surveillance.242 in enact Passage ing Title III. shortly First, of Title III as Congress came after itself Su indicated,245 preme there policy is a handed Katz v. favor down Unit States, supra, 347, providing fairly 389 ed 88 uniform standards to govern 19 issuance L.Ed.2d of wiretap all finally authoriza placed Second, factor, tions. there is non-trespassory the wiretapping and to eaves earlier, which we alluded dropping within the Title ambit of III Fourth 303-304, circumstances, See 407 S.Rep.No.1097, U.S. at gent supra 92 see S.Ct. 2125. Sec- 2511(1) broadly tion interdicts ail at which would serve a note surveillance function “[e]xcept specifically provided presidentially otherwise not whether or ordered in surveil- chapter.” 2511(3), subjected this specific Section to Title unlike the lance was Ill’s four mandate. exceptions 2511(2), of say § does not its inclusion in the statute Thus does not in * * * “it shall not be analysis congressional unlawful the of fact further inter- in- particular cept” types communications, respect question. latter tent with but any attempt legislative rather disclaims at in- U.S.App.D.C. supra, 170 241. presidential See power; terference with inherent -, -, at 516 F.2d at 648. there is no intention to “limit the constitution- power of al cated, Congress the President.” As Keith indi- See, supra g., Gasque, note 15 S.C.L. e. position took a neutral on the Meyer, 66; supra note 53. Theoharis & Rev. at question power of the proceed President’s -, supra, 516 170 243. See 303, 308, a warrant. without 407 See U.S. at F.2d at 611. However, 92 S.Ct. 2125. to the extent such (1968); Cong.Rec. note 221 114 14781 power exist, 244. See does not the disclaimer is effec many provisions supra. of the of Title tively Since superfluous rendered general and the unconstitutional, see, denounced as e. prohibition nonstatutory III were of ail surveillance be- (indi- S.Rep.No.1097, supra g., note at 161 operative. Thus, Keith, comes as in we are Long Hart); and Mr. views of id. vidual Mr. proviso forced the to decide a “nar- Hart); (additional Mr. id. at views of 178 166 question by Katz, row” constitutional reserved Burdick); (individual views of id. at 179 Mr. see id. at 92 S.Ct. 2125: whether safe- Fong), (individual views of Mr. worries guards prior other than authorization of a strongly upon pressed probably themselves the magistrate constitutionally are sufficient under Indeed, Title a similar con- III. draftsmen type case, the circumstances of this in Congress’ evident in treatment of powers cern which the affairs of the Presi- interception of oral communications. 18 implicated dent are but the surveillance was 2511(l)(a)(b) (1970); S.Rep.No.1097, U.S.C. § installed on who individuals were not them- validity of such supra note at 91-92. agents selves of or collaborators with a regulating presidential respect to power. worries questionable. See note 228 su- surveillance pra. See, supra S.Rep.No.1097, Moreover, analyzing the national pay heed to its context. proviso, one should cable, guidance clear in a manner that minimizes provide will to both interception the Executive of communications courts cerning Branch con .the order; procedures judicial of the for au surrounding subject wire issuance, progress reports avoiding thority request many thus tap upon for contin problems attendant ad need hoc future interception; for careful record development in camera ued proceedings.246 “warehousing” Third, of communica ing we believe that the Title pro III intercepted; are for notification of salutary prophylactic tions cedures meas subjects of the surveillance designed primary to protect privacy ures interests intercept their conversations were accommodating still while legitimate good cause for ed, unless is shown need to conduct surveillance. serving inventory specified infor alia, mation; provides, III inter for Title procedures for various descriptions of the loca safeguard intercepted particularity use of such wiretap,247 type of com communications; important for sought intercepted,248 to be munications safeguard reporting of official concern identity subject nature, and the surveillance; scope, and extent of sur ing denied;259 utilization elec veillance, approved for whether only after alternative course, tronic surveillance and, damages civil for vio for procedures have investigative been tried of these of the Title.260 Each lations suc unlikely or would and failed implements important pol provisions ceed; for a judge statement to the and Fourth Amend First icies applications for a warrant any previous of electronic sur in the context ments veillance; facilities, concerning persons, the same yet likely none is inhibit specified application, places manner “the constitution or limit prior action taken judicial on those of the President take such power al applications;251 authority to for necessary” as he deems measures request supporting additional evidence They area. the warrant maxi application; which, given necessity procedures any surveillance, time mum limits on a warrant a be obtained before for that renewals; provisions commence, for exe with security surveillance can eign the warrant as practi- any of soon as impose cution substantial additional do not Bryant, U.S.App.D.C. 132, pp. supra. States v. 246. See 69-70 notes 200 United & & 226 (1971). 439 F.2d 650-653 2518(l)(b)(ii)(1970). 247. 18 U.S.C. § 257. 2518(8)(d) U.S.C. (1970). § 2518(l)(b)(iii). § 248. Id. See also S.Rep.No.1097, supra note at 105. 2518(l)(b)(iv). § 249. Id. 2518(9)-(10) 258. 18 (1970). U.S.C. §§ 2518(l)(c). § 250. Id. 259. Id. § 2519. Public disclosure of the extent 2518(l)(e). provision mitigates § 251. Id. This of national will, surveillance of problem judge-shopping pos- otherwise course, congressional make public oversight respect requests to sible with for search war- informed, more feasible and more and could supra. See note 147 rants. provide the congressional foundation for inves- tigation legislation or corrective appears if it 2518(2). § 252. Id. being that such surveillance is abused. See 2518(5). § 253. Id. Coplon, also United supra States v. note (constitutional 185 F.2d at 638 requiring limits Id. 254. in prevent disclosure criminal govern- trials 2518(6). § 255. Id. going “unpurged by ment action from public 2518(8)(a). scrutiny eloquent public alembic cism”). For discus §Id. criti- 256. importance warehousing pro sion of visions, indicating that national wire (1970). 260. 18 U.S.C. § subject requirement, taps be to see should generally States, supra See Katz v. 261. Huss, supra note (dictum) (discuss United States 54; York, Berger 110; supra v. New note note J.) (Kaufman, C. at 47 — S.Rep.No.1097, supra at 99-107. case, wiretaps in this in con involved ing the supra. contempt proceeding). See note 219 also civil text Branch; specified in evidence of crimes is likely on the Executive burden deed, type procedures are the uncovered.265 be And Section 2518(l)(b)(i) requires application scrutinizing wiretap courts appli which probably develop showing would detailed the facts and any in make cations event,263 which Congress upon applicant but which the has conve circumstances promulgated specified belief that niently for use on formed his those a uni has been, being, We are thus of or are about opinion basis. crimes form Congress the procedures intended committed.266 be of Title III to apply remedies to all Although pure intelligence gath most which, surveillance under the justified could even be ering surveillance Constitution, pursuant must be initiated provisions, specified since these under judicial warrant.264 cognizance within Section crimes engaged in generally should, will however, One caveat (and surveillance subjects of the statu to this appended conclusion. There are the surveillance would tory basis provisions which, of Title III in several available),267 pure thus be there will be the intelligence gather the context activities, ing very rare instance would frustrate which the consti no crime situations, involved. power of these President tutional which cannot apply therefore adherence strictures which of Title III given unduly would plain language trammel the inherent pow the President legislative history of er of conduct 2511(3). Section certain 2516 authorizes surveillances furtherance of his Attorney Section consti duties, apply for a Section 2511(3) tutional General to con indicates Congress intended that duct surveillance situations the provi- requirements merely generally 263. Most of the Title III 265. See 18 U.S.C. § 2516 grant judges power require compliance 266. See 18 2518(l)(b)(i) U.S.C. § (1970). See procedures judicially that could be man- 2518(l)(b)(iv), also id. (3)(a), §§ (3)(b), (3)(d), any dated in proceeding. event in a warrant (4)(c), 2519(l)(e). although requirements And absolute such as 30-day any limit on the supra. duration of specified surveil- See note 168 These might lance not be gamut identical with those which crimes cover the full of national securi- judges impose sponte, provisions ty sua although Report offenses. And the Senate concerning such as those availability renewals statutory render indicated that the sur- enough them flexible so that there is no neces- veillance in these situations should not be in- sary terpreted requirement interference with limitation of Execu- that the President intelligence gathering tive functions. powers refrain reliance on inherent might possess, he apparently this statement very also It should be observed assumed courts would hold that cer- 2511(3) § breadth disclaimer indicates security tain national exempt surveillances are Congress merely that judiciary wished to defer to the prior judicial scrutiny, from and the thrust of respect resolving with to the issue commentary primarily was directed at the in Katz. Senator reserved Hart noted that the problem of when evidence obtained without a security” read, “internal clause could be warrant would be admissible in court. See example, taxpayer to cover a who withholds supra. truly Congress note 240 If intended protesting governmental funds as a means of policies. apply that Title III not to national Judge suggests, as And McGowan a require- surveillances even when the warrant spectrum legal illegal formidable of activi- applies, unnecessary ment was to include ty impact could a substantial on the Pres- any authority to conduct surveillance for na- ident’s conduct of affairs. Yet it is tional sabotage, crimes espionage such as Congress deliberately inconceivable that creat- always which would fall within the statutory comprehen- ed a lacuna which the language proviso. procedures inapplica- sive Title III would be example, 268. For one ble to such situations even when such situation the President would be constitutionally compelled where the would Government seeks to determine submit review; judicial protected prior sys- where or a when such two-track demonstrations that procedures might against foreign result violence tem of lify offi- would nul- rupturing uniformity diplomatic protection cials and a much relations likely place, privacy adequate are curity to take which so that for individual Title III in- se- was provide. measures be taken. tended to 670 of Sections 2516 sions and 2518(l)(b)(i) guidance should be accorded some con presidential not limit powers, al- cerning good the standard of faith that though there is no reason to applied consider as a statutory should defense Congress intended the other liquidated damages claim. provisions of procedural III, Title which originally enacted, As Section substantially affect do the conduct a provided “good 2520 faith reliance surveillance, would be ousted. provisions on a order on the court effect, say this is In that Section 2518(7) of this chapter section shall con 2511(3), explicitly acknowledges complete defense any stitute civil or foreign intelligence gathering func- brought action under chap criminal this President, tion of the should be read to 270 Although ter.” this clause was implicitly intelligence include gathering provide amended “good that a legitimate statutory subject of war- legisla faith reliance on court order or

ranted surveillance under Section 2516, authorization shall tive constitute a com incorporate corresponding defense to civil plete or criminal ac constitutionally appropriate standard of brought this chapter under or under probable cause required as the showing law,”271 any other the amendment was under Section 2518. not effective until after the second wire tap installation this case already had

B. been authorized.272 We do not pause to consider which these provisions two case, apply case, disposition should in this light of our since we are of will have to that under a on remand the belief literal interpreta trial court version, previously either appellees of the issues tion of some would in decide grant appel strictly be held because of effect liable for their’ reached summary judgment.269 and could assert no good actions motion for faith lees’ however, However, believe, court defense.273 we perceive do not We installed, language supra. approved had been See notes 8 & 18 269. the surveillance was before authorized Mr. supra added). 270. note 216 See supra. See. (emphasis appellees See note And Mitchell. supra (discussing 2518(7)). note 240 also § language have taken new could as indica congressional respect intent tive of with Pub.L.No.91-358, 211(c), § Stat. 654 prior Cf., statute. construction Erlenbaugh (1970), amending (1968). § U.S.C. v. United “conforming The amendment was one three 243-245, L.Ed.2d 446 amendments” which D.C. Court Reform 2511(3) exempt does Since the statute § legislative history Act made to Title III. The surveillance, appel “constitutional” obscure as to the exact intent of these amend- they good claim relied on the lees could faith S.Rep.No.538, Cong., ments. See 91st 1st their actions were constitutional belief Sess., (1960); H.R.Rep.No.907, 18-25 91st comply did and that therefore not have to Sess., 77-79, Cong., (1974); 2d H.R.Rep. infra, See the statute. No.1303, Sess., Cong., (1970) 91st 2d 237-239 supra, 516 F.2d at note at - & (conference report). course, subsequently supra. Keith Of approved July 29, amendment was on specific grant 2511(3) is not a § held that wiretap approved One installation was authority warrantless surveillance. to conduct 15, 1970, Sept. and the second one was supra, U.S.App.D.C. at-, approved on Jan. 1971. The effective date appellees argue could that be at 660-661. But 1, of amendment Feb. was 1971. See belief was reasonable. In such a fore Keith M-l, M-2; Exhibits Plaintiffs’ 1970 U.S.Code event, any did claim to have not Mr. Mitchell Cong. & Adm.News 785. statutory language, inher but on relied on the version, Under the 1968 it is (deposi clear that powers. no JA at 29 See ent court order was and Mitchell). approach obtained the warrantless Under our to Mr. tion of was not limited defense, to good surveillance the 48 good hours such a faith belief faith provided sion, 2518(7). any Under § complete 1970 ver- in defense event since be a would ap- there is a more colorable claim that to a belief that the Execu in effect it amounts pellees could base a “legislative exempt defense on the from the stictures of actions were tive language. although For authorization” the statute. wiretap were after amendments effective

671 Katz, since good 2511(3) standard Section expressly the relevant of de faith in literally to that to restrict specified case be this in clined “constitutional” Execu 2520; rather, we find Section that a tive surveillance.275 as But the Supreme good liability, faith defense to whether observed, Court has police officer is “[A] the Bivens under rationale the statu charged with predicting the future tory theory, will be established if appel course of constitutional law.” Pierson v. (1) demonstrate lees can that they had a 386 Ray, 547, 557, U.S. 87 1213, S.Ct. subjective good faith belief that 1219, it was 18 L.Ed.2d 288 See also constitutional install warrantless wire Strickland, Wood 321, 420 308, under taps the circumstances of 95 1000-1001, S.Ct. 43 L.Ed.2d 214 case; (2) and that this belief was itself (February 1975). Thus, in light of reasonable.274 Congress the fact that made the applica

bility Title III turn on the future above, course Congress law, As we indicated constitutional as well as that III the fact applicability legislative that Title intended history and language in the national Title and remedies III are procedures themselves upon ambiguous security contingent fur somewhat context concerning the ap concerning plicability that pronouncements chapter ther national se curity surveillance,276 question reserved constitutional and considering the Cf., today totally v. Six Unknown Named held Bivens that Title III inapplica- was Narcotics, security surveillance, Bureau of su Agents of the Federal ble national appellees 1347-1348, interject, pra F.2d at have able would been note as a defense making rationale, this determi cited therein. to an action under a good Bivens sources nation, probably they reasonably on will the trial remand belief expected court faith testimony concerning, to take additional warrantless national have surveillance was alia, of the conduct the details of this today if inter constitutional. And we had held that ap to ascertain in order whether constitutionally warrantless permissible surveillance was wiretaps pellees in believed these fact under the President’s af- gather powers, 2511(3) being utilized to intel exempted fairs § would have ligence challenged rather than obtain evidence for actions proce- from Title Ill’s prosecutions in circumvention dures and remedies. criminal Given the fact that either requirement. supra. note supported See of those results could be at least Moreover, arguments, will have to the court determine colorable we do not believe our preclude appellees in fact good believed that surveil resolution should whether defense of a scope actually and duration was belief those of this faith coming. results would lance necessary be forth- performance intelligence of their As the Court has noted Bivens, supra, Cf. gathering duties. context: another exists, probable (belief that cause rath policeman’s unhappy lot A is not so that he probable con cause existence than er being charged must choose between sense, proved). must be stitutional duty dereliction of if he does not arrest any express probable cause, views as to when he being decline to has We damages belief that warrantless Although mulcted reasonableness if he does. wiretapping entirely doubt, the circumstances of this under the matter is not free from constitutional, until trial at least same case consideration would seem to re- appellees quire excusing liability did in fact determines him acting from court However, we reasonably note such a belief. under statute he believed light should be made valid but that was later this determination held unconsti- judicial precedent, applied. other Supreme Court tutional its face or as Ray, supra, U.S.App.D.C. at---& Pierson v. see (1967) (footnote 36 & F.2d response supra, argument generally U.S.App.D.C. Nor is it a to an that the ambiguous say appellees was had statute If we at---, at 659-663. F.2d derogation possess, statutes found we doubt Congress of the policy relatively law should be strictly common desired that a final resolution of construed,277 Congress we do not believe complex and controversial issue preclude good faith de intended have to result in the extremes of that Executive officials acted un fense holding either Title III totally inapplica- reasonably they what believed were der security to national ble surveillance or constitutionally (and inherent there holding Executive else strictly officials statutorily exempt) powers fore of the having for erred in liable their assess- President.278 powers of the ment fact constitution- light expressed of the congressional granted the ally President and thereby not to disturb intent whatever inherent statutorily insulated from liquidated powers constitutional the President was damages. Thus we hold that under the See, any Sutherland, ambiguity by g., resolved should have e. A. accord- Statutes and Statutory ing (4th the benefit of the doubt to the ch. statute and Construction ed. C. D. Sands, 1974). complying with its strictures. See brief for ed. appellants at 61-64. As the Senate Re- Appellants argue may deny that this result indicated, port Title III the existence of’ compensatory damages in them contravention procedures Ill’s was not to Title be taken as a concerning Congress’ purpose statement of of 2520: congressional they statement must be § complied security situations, national privacy All too often the invasion of itself supra, see note 240 at least until doubts as to Only by go striking will aspects unknown. at all constitutionality of warrantless surveil- problem privacy can be ade- resolved, supra, U.S.App.D.C. lance quately protected. prohibition, too, The at-, Nevertheless, 516 F.2d at 663—667. appropriate enforced with all must be sanc- suggested appellee has been not Mitchell penalties part tions. Criminal their properly provision be included in our for play. But other remedies must be afforded remand to the District Court to find whether priva-, of an unlawful invasion the victim appellees reasonably believing acted cy. must be made Provision for civil re- Constitution authorized warrantless surveil- damages. perpetrator The course for must lance under circumstances of this case and the fruits his actions in be denied civil security proviso thus that the national proceedings. Each and criminal of these ob- 2511(3) exempted requirement § them from the sought proposed jectives legisla- compliance procedures. with Title III The tion. argument is made that it was incumbent on 69, quoted supra S.Rep.No.1097, gone judge, using Mitchell to have to a (supplying empha- appellants at 56 for in brief emergency provisions in the Act—18 U.S.C. However, merely Congress sis). because ac- 2518(7) ruling asked for § as to whether —and remedy illegal statutory for surveil- corded a required. a warrant was To avoid misunder- remedy judicially was es- such a before lance tablished standing, expresses approval this court neither violations, all Fourth Amendment disapproval contention, nor of that but con- at-, supra, 170 see issue, any siders that this like other issue of that it intended strict not mean does faith, good is for consideration in the District judiciary subjected liability if to ensue Court in the first instance. On remand the surveillance to President’s can, parties present advised, if develop are so rights approval. prior judicial of victims disposition, light presenta- must actions to some ex- unconstitutional counsel, any all the contention that against the needs of law en- be balanced tent wiretapping belief that warrantless in the JDL forcement, particularly when an official in situation was constitutional was unreasonable according to a reasonable be- good acts faith Attorney gone because the to court to resolve General could have congres- are lawful. actions Given his lief that any ambiguities that Katz importance expressions of nation- sional precedents concerning other and ent created inher- surveillance, see, authority proceed tutional case,279 with na- proper of this circumstances tional surveillance without a good faith is statutory defense identical is entirely warrant. This in accord with good common law with the faith defense Keith, which did reach and decide the apply to the that would Bivens cause issue constitutional as we do which, action. case, a criminal being did not address question of the applicability of the provision of remedial' Title III to instanc- carefully opin- We have considered the presidential es of unconstitutional sur- McGowan, Robb, Judges ions of and Wil- veillance. join key holding us in Reversed and remanded for proceed- surveillance warrantless in this case was not inconsistent with ings this opinion. gives illegal rise to a cause of action. question Wilkey confronts Judge had inherent the President

of whether APPENDIX A authority conduct constitutional warrant, and con- without imper- this was we do—that cludes—as THE WHITE HOUSE Amendment. under the Fourth missible WASHINGTON agree Judges MacKinnon alsoWe it Wilkey that the record as CONFIDENTIAL May was effort the Execu- there stands MEMORANDUM FOR THE problem of cope with the ATTOR- tive NEY GENERAL thereby necessitating a resolu- security, question. that constitutional tion of agreed with broad purpose I Judges McGowan and Robb conclude— relating Court decision liquidated do—that the as we damages investigations. in wire-tapping provision Title III applies to this case. undoubtedly sound both in re- they conclude Insofar as that the consti- the use evidence secured over gard question may tutional bypassed in the prosecution wires in of citi- tapped reaching this determination, their opin- cases; right and is in criminal also zens are apparently ions based aon view of ordinary that under opinion in its the record different not only from ours wire-tapping by circumstances normal but also from that of the Court, District agents should not be carried Government premised, and are so far as the legal excellent reason on for concerned, issues are on what is dis- to lead abuse bound of civil almost rights. cerned from the language of the statute and the emanations glean from the However, I am convinced that the Su- Keith opinion. The same sources lead intended any Court never dictum preme Judge Wilkey to a different view of the case which it particular decided to in meaning of the statute. In our opinion involving matters the de- grave apply greater we have referred in detail to the of the nation. fense legislative history, in order to ascertain Congress the intent of' is, course, It passing well known that cer- proviso, and we believe Congress nations tain other have been engaged in defining the reach of organization of propaganda statute of so- abstaining terms of congres- “fifth columns” called in other countries enactment sional preparation those for sabotage, instances and in as well where the President has sabotage. inherent consti- as in actual course, good 279. Of faith judice; belief that Keith the case warrant- sub no such belief less national surveillance of could be defended domestic as reasonable. See also organizations was supra. constitutional could note 67 not be future, given asserted decisions present in the me that to It seems it anything to do about late is too It affairs, international period troubled and “fifth sabotage, assassinations after increase by it is as accompanied completed. are activities column” home, activity here at it as subversive therefore, authorized and di- it was in are, necessary as 1940 to take the You you may approve, as measures referred to in investigative cases in such rected investigation of the need in each Roosevelt’s memorandum. At President after time, necessary country investi- is threatened case, to authorize the same they liberty very are at substantial increase in crime. agents by a gation suggest by listening any information I am reluctant use devices While secure special to the conversation or other of these investigative whatever directed] cases, in domestic it seems to persons suspected communications measures against activities the Govern- to use them in cases vital- imperative subversive me States, including affecting security, the United sus- domestic ly ment requested jeopardy. You are further- life is in spies. human pected where investigations these to limit so con- more modified, As so I believe the outstand- minimum and to to a limit them ducted ing directive should be continued in , possible to aliens. as insofar you If concur in force. this policy, I F. D. R. /s/ appreciate you it if should would so indi-

cate at foot this letter. proposed my opinion, measures law, authority I within are ATTORNEY THE OF OFFICE Department files of the ma- GENERAL indicating to me my two terials WASHINGTON, D. C. predecessors Attorney most recent 17, 1946. July would concur in this view. General President, The yours, Respectfully House. White /s/ TOM G. CLARK President:— Mr. My dear Attorney General 21, 1940, President May date Under 17, 1947 July Roosevelt, [sic] in a memorandum D. Franklin Jackson, Attorney General addressed I concur. stated: HARRY TRUMAN /s/ S. di- authorized and therefore are “You you may ap- cases as in such rected the need investigation of after prove, the neces- case, authorize each ADMINISTRATIVELY agents investigating sary CONFIDENTIAL information lis- to secure liberty to the conver- directed tening devices THE WHITE HOUSE per- communications of or other sation WASHINGTON activities of subversive suspected sons June of the United the Government spies.” suspected including THE FOR HEADS MEMORANDUM . was followed directive Attor- This DEPARTMENTS EXECUTIVE OF Biddle, Jackson and General

neys AGENCIES AND currently Depart- followed in this being intercep- strongly opposed am appropriate, I I consider how- ment. gen- conversations as a telephone of investigative technique. bring subject your atten- tion ever, recognize I eral time. at this any interceptions a list mechanical and contain electronic shall that may devices authorized and reasons for currently sometimes be essential protecting security. Nevertheless, our it is them. that indiscriminate use

clear of these in- B. JOHNSON /s/ LYNDON vestigative devices overhear telephone conversations, knowledge without the the persons involved,

consent JUSTICE OF DEPARTMENT result in could serious abuses and inva- 3, 1966 November privacy. my view, of In sions the inva- of privacy of sion communications is a NO. 493 MEMO highly practice offensive which should Attorneys TO: All States engaged in where the se- Ramsey Clark FROM: curity is at To stake. any avoid misun- Attorney General Acting derstanding subject on this in the Feder- Government, I am al establishing the fol-

lowing guidelines basic to be * followed * * adopted practice, Present in government agencies: all conformity policies with July by President Johnson on June declared intercept is

(1) personnel No federal for the entire Federal establish- 30, 1965 telephone conversations within the ment, the installation of listen- prohibits by any mechanical or United States (as in private areas well as ing devices device, without the electronic consent interception telephone of and other parties (except of one involved communications) all instances wire investigations with relat- in connection involving those the collection than other security). to the national ed the national se- intelligence affecting of specific The of authorization curity. (2) interception No shall be under- General must obtained Attorney taken or continued without first ob- exception when in- is instance each taining the approval Attorney Intelligence so collected data voked. General. investigative or be available for will purposes. litigative (3) agencies All federal shall immedi- practices pro- conform their ately BAZELON, Chief Judge (concurring in provisions of this order. cedures dissenting part, in part): of mechanical or electronic Utilization is My concern with the Court’s discus non-telephone con- to overhear devices possible sion of defenses available prob- more difficult is an even versations lem, Mitchell John and various former subor unre- raises substantial and of his in dinates the Federal Bureau of of Constitutional inter- questions solved Investigation. While purporting to leave agency that each I desire pretation. question for another appeal, investigations consult conducting such Court has apparently determined to Attorney General to ascertain grant all these defendants a carte practices fully agency’s whether blanche mistake of law defense to the with the law with a decent accord liability imposed civil by Title III.1 This rights others. for the regard important holding is not accompanied by shall head submit to serious Every agency attempt to defend what com- days significant within must remain a Attorney General extension inventory of all and the isolated mechanical cases granting plete mistake used law defense. equipment devices The purpose of electronic this con intercepting telephone curring opinion capable is to explain why I addition, reports such hold that the subordinate conversations. FBI of-

1. See 18 U.S.C. § is Bivens more While than a lit arrest. do have a defense of mistake ficials issue, it appears on the obscure tle precedent from established drawn law arrest would find the there court John does also hold Mitchell had reasonable officers if the justified not. seemingly equal to the (a standard belief arguments on two itself) Court relies cause that a The of probable standard rule its erosion and that support committed had been general crime is a defense.2 law mistake committed it.4 If this is person arrested a de Bivens, argument it is indeed de meaning first the com merely declarative position of the mature fense clarative was itself law law, the common as law.5 The of our mon distinction common Unknown Six in Bivens is that even if the facts declared here case 1339, 1347 — 48 F.2d Agents, be, supposed them to Named defendants as However, is a se 1972). there (2d justified Cir. with could not be search ju case sab between the distinction intention. The reason vere law’s is that search here Bivens, a central conclusion distinction this and dice period for an extensive conducted law and which defeats was common a and is of the Bivens, warrant outside argument. without issue Court’s exception to “exigent offi circumstances” arresting3 to whether pertained requirement.6 today The Court had, true facts were warrant if the cers completely I a be, and concur probable them to holds believed officers required justify is searches grounds to make reasonable cause is less general rule, zure circumstance than in the arrest 2. For statements of the see Unit- authority I use common law on circumstance. ed States v. International Minerals & Chem. imprisonment large part 558, 563, 1697, and false in Corp., arrest 402 U.S. 91 S.Ct. 29 California, of an absence of case (1971); because law on the tres- 178 Lambert L.Ed.2d v. 355 liability public 225, 228, 240, pass officers. 78 S.Ct. 2 U.S. L.Ed.2d 228 Minnesota, (1957); Shevlin-Carpenter Co. v. 456 F.2d at 1348: 4. See 57, 68, 663, 218 U.S. 54 L.Ed. 930 governing police The standard conduct is States, 246, (1916); Ellis v. United elements, composed of two the first is sub- 600, 257, (1907) 27 51 1047 S.Ct. L.Ed. jective objective. is and the second Thus Gris, (Holmes, J.); States United v. 247 F.2d allege prove must and the officer 860, (2d 1957); Cir. 864 Dennis v. United believed, faith, good he that his con- 31, 986, 84 990- lawful, was but also his was duct belief aff’d, 162, 519, (1948), U.S. 339 70 91 S.Ct. 94 reasonable. (1950); Momsen-Dunnegan-Ryan L.Ed. 734 interpreted language is If this to mean Helvering, App.D.C. 9, 63 68 F.2d 754 Co. if the facts are as believes even officer Ehrlichman, (1933); States v. 376 probable there is still no them to cause 29, (D.D.C.1974); F.Supp. Polizzi, 35 United States v. sense, constitutional the officer is still F.Supp. (C.D.Cal.1971); 323 226 liability, question I would whether free Hurley, F.Supp. Aalten v. 176 Van 857 po- is consistent with the common Bivens law (S.D.N.Y.1959). gen- It will be noted that the See, Chaney, Laster v. 180 Miss. sition. applies rule both to civil eral and criminal law. (1937); Collyer 177 So. 524 v. S. H. Kress purposes appli- not matter for It thus does Co., (1936). 5 Cal.2d P.2d & However, general rule of the cation least that (1970) “objective” the so-called standard authorized action U.S.C. 2520 § in Bivens seems to embrace the enunciated Presumably, civil denominated nature. a probable cause or standard reasonable person liable under § would also be liable per- ground, if were as the facts the officer provisions the criminal of 18 U.S.C. under § margin police them to be. The error ceived permitted 2511(1)(1970). grouped Bivens is thus that un- opinion, presume legal I will In this concept of mistake of fact. der the controlling principles searches and seizures 3.09(1) (Tent.Draft § Model Penal Code 5. See principles controlling to the identical ar- 1958) 18, 76-77; Commentary No. Wilgus, personal It would seem that the rests. interest Warrant, Without a Arrest Mich.L.' greater from arrest than the in- in freedom Rev. 673 searches, in freedom from official al- terest wiretap- though exception find both constitutional roots is now codified 6. This 2518(7) (1970). But on ping Amendment. the other hand § 18 U.S.C. Fourth government interest in the search and sei- law mistake of defeñse in the statutory mistakenly ilk. The defendants be “false arrest” cause of action established required. that no warrant was lieved by 18 2520 (1970), U.S.C. is, § on a misappre belief not based This subject course the litigat instant salient facts but on hension of an errone ion.9 concept of law—that ous Fourth require did not a Amendment warrant in argument The Court’s second is that security” “national so-called circum Congress application intended stances. cause of depend action to on the § “future course This distinction between the of constitutional law” two cases Ray, is sensible to the Pierson v. common under law which (1967), makes a consistent distinction L.Ed.2d between of fact and mistakes law.7 officer is not be held police liable for distinc prediction tion is reflected in the law of as to the course mistaken arrest imprisonment. false If an law. But v. Ray officer constitutional Pierson appre hends an individual on police premised actions basis of involved facts true which if statute later declared to state be uncon constitute an law, known and not police offense stitutional on the actions ba of a warrant on their own view premised sis as to the suffering from the same defect, that constitutional officer is correct command.10 liable in This an action imprisonment.8 also false distinction informs the common law good His faith problems or reasonable approach belief arrest facts did imprisonment: an offense an arrest made constitute false is not a defense. existing on principle harsh fide reliance an ordi Such of the bona com is prima jus mon law. The actions of nance or state statute facie Mitchell and other we defendants fall tified. Here consider law enforce clearly within principle they this actions not taken in reliance on mistakes of ment law — concerning necessity existing legislative but of a action rather in search war willing rant. Unless we are on interpreta reliance official’s own erode the principle, common law there of the law.11 The mistake is can be thus no Stinnett, ciple). supra. Miller v. 257 Cf. F.2d 910 See 2 7. authorities cited note 1958). (10th Cir. 710, Campbell, See Winters v. 148 W.Va. 137 8. 188, Compare supra (1964); Guy, authorities cited note 196-97 10 Donovan v. S.E.2d 457, 190, supra. signifi- cited 8 (1957); with cases The Mich. 80 N.W.2d 193 347 Collins, 492, of cance this distinction lies its relation 195 Larson v. Mich. 162 N.W. 86 policies Co., of of (1917); the mistake law rule. v. Alum A Williamson Glen Coal 72 288, judgment legislative validity par- (1913); Crumpton as to the of a 78 S.E. 94 W.Va. v. 199, great weight Newman, (1847). measure is accorded 12 ticular Ala. 46 Am.Dec. 251 Shuttle, adjudication 67, legislature Ind.App. constitutional and the also Stine v. 134 See 186 168, generally delegated Nester, highest (1962); law-making 171 Holmes N.E.2d v. 81 372, (1957); in the constitutional 306 290 role order. Ariz. P.2d Brinkman Constitutional v. 171, Drolesbaugh, 451, opinions lawof enforcement officials 97 Ohio St. 119 N.E. are enti- Leach, 452, (1918); v. 7 State to no such deference. See infra 454 Conn. 18 tled -, App.D.C. p. (1827); 67, pp. 118 32 678-681. § Am.Dec. Am.Jur.2d Collyer generally Co., (1967); Imprisonment v. 35 C.J.S. False S. H. Kress & 5 129-30 Cal.2d (1936). 28b(3), (1960). 54 P.2d at 671 23 § nothing There is furthermore in 18 U.S.C. course, argument, applies of The same (1970) support 2520 which could § an exten- by cause action established constitutional attempts. sion of Pierson such the Court Agents, Named 403 v. Six Unknown Bivens grant 2520 does a defense Section on the basis (1971). 29 L.Ed.2d 619 U.S. (not case) a court order relevant this “good 10. See 386 87 the basis faith reliance S.Ct. 1213. For on on . authority result, supporting legislative law common authorization.” As the Court re- Anno., lates, of § A.L.R.3d 535 an earlier form see But effect see when Mitnick, instituted, taps provided Ind.App. v. Coleman these only a defense (1964), procedures rehearing, usage on N.E.2d 577 for N.E.2d U.S.C. 1965) (strict (Ind.App. 2518(7) (1970). prin- change The reasons for mistake of law § arise, pretation might a means future as to the course of constitu- not which would insure liability. present law as to its tional but command The Court’s treatment of Pierson is ex- by a contrary legislative untrammelled limited to plicitly case’s The factual judgment. mistake is one of pure predicate taken under a justified, all, statute law and must if at on —actions declared to be later and not unconstitutional. that basis reliance on the v. Strickland does support Wood principle. Pierson decision court’s here. 308, 95 Strickland, 420 U.S. v. Wood sure, To be Pierson (1975) adds lit- involves a limited L.Ed.2d general erosion of the rule ruling argument. mistakes court’s tle to of law claim, do not constitute a immunity defense. We sovereign a may certainly use the immunity principle exist- no of that indicated case to make further constitu- limited a student’s intrusion violation ed for general into the rule. I recently the violation was when had rights tional express my occasion disregard of set- views on “ignorance caused proper analysis mode . of this question . .” Id law . tled, indisputable Barker, v. U.S.App. in United States recognizes certainly ruling This (1975) (Bazelon, F.2d 208 of D.C. that mistakes rule force concurring). C. J. excuse, clearly holding of as the dissent do law controls the “settled, opinion claim in- reference various Its up. points subordinate FBI officials in the context made law” is mandates disputable conclusion my who did those members board defendants school do actions cognizable mistake for ascertain- law a means defense available not have actions.12 to their inter- of constitutional any questions ing entirely seem to include but clear officials. And as are not enforcement text, discussed in the exculpates protect carriers from liabili- common Pierson mistake of law desire following legislative of law enforcement ty approval the orders when there is in fact a Ray to be disputed Pierson general declare actions. and to Pierson is not a officials in- The amendments area. in this of the mistake of the law abandonment tainly nothing law rule. Cer- of the Senate legislative on the floor added were aforementioned volved by purpose history slightest was His stated McClellan. the indicates intent Senator to alter any of fear of lia- carriers common doctrine. established to relieve bility. (1969) Cong.Rec. foregoing argument disposes any 37192-93 115 See The of con- McClellan). Both Sena- 2511(3) Senator (Remarks of tention that a mistaken belief that § taps to Title 18 and permit amendments warrantless McClellan’s authorized culpation. tor ex- could Act to Reform pure of District Columbia Such a mistake is one of the law by attached and amendments United States those as is established v. United which Court, wiretapping 297, statutes the federal District 407 enacted States U.S. 92 which S.Ct. 2125, (1972). contained nothing of Columbia in the District 32 L.Ed.2d 752 law And into 2518(7) “legislative change au- exculpates pure to from 2520 or the common law § § the 37183, 37188, 37192-93. See id. law. thorization.” mistakes of of Columbia Court Report the District The 12. The reasoning my center of during Barker the de- involved Act sections Reform opinion mistakenly is that those who believed resulting amend- McClellan’s in Senator bate actions were authorized changes their are suffi- (j. S.2869) that certain states ments ciently similar to those who are wiretapping called to the language the Title 18 of in provisions an officer that the mistake of aid of law de- ambiguities. eliminate made to are recognized of the latter fense common law Report to a law review article. cites then should be extended to the Cong., former. See 18 514 S.Rep.No.538, 1st Sess. 91st See page opinion. F.2d Hancock, 235 & nn.36-38 of that Blakey Proposed citing (1969), A & authority, Moyer For additional Act, see 43 Notre v. Control Surveillance Electronic 405, Meier, (1951); 205 Okl. 238 P.2d 338 (1968). in discuss- This article 657 Law. Dame ing Anno., (1953). A.L.R.2d 825 Part 29 analogue proposed an to 2520 § draft of a reasoning of the common law “call to aid” rule phrase “legislative authorization” includes is, suggested, the I have tenuous relation be- explains accompanying footnote an determining of fact and law in tween mistakes Id., phrase codifies Pierson. 386 U.S. authority. police explana- A a officer’s further Thus, 57, statutory 87 S.Ct. n. 681 provi- rule lies in various state tion of the law law broader than Pierson for no are defenses

679 judgment a perceive But I do not how tional any warrant was limited required law erosion of mistake of so-called security” doctrine can “national circumstances,13 produce a defense for John equally He is Mitchell. clear pure every has made most informed official and certainly mistake of law imaginable. He chief law relied on enforcement officer legislative no of Na judgment be his tion would aware that actions were permissi- matter was yet settled. ble or constitutional. He Yet no relied on no attempt was superior bring orders or made any disputed form of authoriza- matter Furthermore, given tion. the courts which reason are of the ultimate of law saying mistake rule is task of surely what served law is. The imposition procedure of liability. obtaining While I will as- a purposes sume for determination of this was available decision to Mr. one make Mitchell.14 could a Under these reasonable constitu- circumstances. 95-97, 1031, make it 65 89 sions which a misdemeanor to. S.Ct. L.Ed. to fail 1495 Furthermore, police legitimate ambiguity application aid officer. a the case sub of a judice, authority generally Mitchell’s criminal statute is not as resolved in close favor Bass, question of fact of the accused. as was the case in United States v. Barker 404 336, 347-48, 515, general (both U.S. (1971); 92 and in “call aid” S.Ct. 30 L.Ed.2d 488 situation Moore, depend U.S.App. United v. upon appearance States 164 au which 319, 426, (1974), grant 505 427 D.C. F.2d thority cert. take an immediate or clandestine ed, 924, 1116, However, 95 action). legal S.Ct. 43 392 L.Ed.2d there is more of a (1975). Perhaps part employees obligation the combination of on the these au of the Jus is the Department carry thorities true- basis of the Court’s ero tice out the directives superiors sion of the rule ever, superiors mistakes of their when those law. How assure infra, legal. pro as is discussed in note actions are I 14 them their think it would suppose that-employees uncertainty 2520 saved § visions unrealistic availability Department obtaining of a means of Justice should forced to choose judicial approval employment activity or review of termination of al between for refus leged Furthermore, to be al directives constitutional. to follow and maintenance operates only opposi is a civil § 2520 sanction which correct view constitutional duties in liquidated through damage provision. superiors. incorrect view of Civil There Department highly less concern within the thus with the disobedience harshness liability unlikely and we various forms of absolute doubt whether it should in the law Raley Ohio, encouraged. property when the sanction be 423, Cf. v. U.S. lies in loss 360 1257, physical (re (1959) 3 and not 79 S.Ct. L.Ed.2d 1344 incarceration. See United Park, advice); (4th official v. liance on United Cal States F.2d 840 n.2 States v. Cir. 1974); People ley, (1973) (superi ex 541-14 rel. Price v. 22 U.S.C.M.A. Sheffield Farms Co., 25, 32-33, defense). Ray, also 225 N.Y. Pierson N.E. orders (1918) (Cardozo, J.). Holdridge Cf. 386 U.S. (1967) (reliance v. United L.Ed.2d States, (8th 1960). legislative judgment); F.2d on a Cir. 213, United U.S. James v. procedure is embodied in U.S.C. That (1961), 6 L.Ed.2d 246 followed 2518(7) (1970) permits a law enforce- § Bishop, States v. place tap to and to emer- ment official a seek (1973) (reliance S.Ct. L.Ed.2d approval. judicial gency If Mr. Mitchell decision). on a court preserve contention war- wished his that no necessary, he could have so informed rant was to how one deter- 13. I informed as am argued that no warrant was nec- judgment the court is a constitutional mines whether tap. essary position If to continue the one a or not. Does make such “reasonable” pro- approved, would by position Mitchell have been reference determination liability by express provisions the lawyers from tected interpreter or the number the country supra. every judge If See note 11 agree interpretation? § who with the application were directed refused assumption to which I make does of reasonableness The contention, uphold Mitchell’s he have suggest in this case the standard of liabili- right relief. United mandamus ty When stan- 2520 is not clear. § under Court, clear, v. United District liability States States is there is some dard of authority aff’d, 1971), (6th 407 U.S. Cir. proposition 651 n.3, for that mistakes Fur- 32 L.Ed.2d 752 permitted. Cf. Lambert v. Cali- law should fornia, thermore, placed taps at the time Mitchell 78 S.Ct. 2 L.Ed.2d lines, he States, in this case on various in' issue (1957); Williams v. conten- the Administration’s was aware L.Ed. U.S. (1951); security” “national about warrantless tions Screws United Branch to make constitutional rights with the of American citizens intends to overrule Execu- balance, law it was incumbent upon what, only prospec- determination Branch Mitchell to find out tive Mr. the law was, to call to his conscience whether his the Court in foot- understand tively. I agreed actions with the constitutional or the District 276 mandates Court viewed, thus der. When Mitchell’s ac whether it would have been un- consider directly fall within tions the intendment for reasonable Mitchell not to have the rule mistakes of law: judicial a sought determination of his the primacy both to assert of the legisla authority to wiretap without a warrant judiciary and the ture the making of security” circum- “national in so-called law their within powers constitutional how is the District Court But stances. duty and to assert the of all citizens to to the issue? consideration proper give law obey know that it.15 Former an action is “reasonable” such Whether Justice Griffith of the Court of a merely question is “unreasonable” Mississippi instructs us on point:16 law, Mitchell’s erroneous viz. should person When a has been chosen to This is in be excused. the law view of high position of sheriff and has the issue of simple restatement of a turn assumed the duties thereof which in rule that general case: should largely actual execution so deal with prevail is not a defense of law mistake the people, the liberties of it will be body be eroded. Since the it or should naturally supposed he has taken is directed to a discussion Court’s of the pains acquaint some himself with mistake of law should be that a proof power authority conferred if a true national permitted, upon by arrests, him law in relation to taps, the District motivated the purpose and with the limitations thereon as may well find itself more than a Court by down the law. laid And when an confused. little by arrest has been made him and his and an deputy, imprisonment imposed, recognize that the rule that mistakes I and the facts by admitted him show is a law are not defense harsh rule. legal grounds therefor, no whatever arguments Perhaps serious could be here, jury the case is permitted should be should be abandoned in presented say whether the conduct might agree I well with such ar- toto. of the officers has been characterized guments. But the Court here neither gross wrong as to evince a to abandon the rule nor ex- purports disregard wanton or willful why is this case different plains others, and, so,

rights of if to adminis- of cases in which the mass mis- from by way corrective ter a smart mon- of law have been found to be no takes ey- illegal activity. justification I would enough trouble with a wholesale is that matter short The of the rule abandonment since I do not permitted action its has litigation than approval for better undergoing in a number taps were to seek failure delay that contention was unreasonable Administration’s an is such forums. months six language It alone. clear that basis departure liability attach should bringing past delay largely on and relied Amendment unreasonable Fourth settled Thus, light magistrate of the uncer- the basis practice. before executive arrestee liability arrest legality if the Administration’s even tainty of the imprisonment as to false approv- availability at 89 § justified. 32 Am.Jur.2d position and were itself officials, exculpate enforcement the law (1967). al to argue of law that mistake to difficult seems Barker, U.S.App. v. United States exculpate Mitch- to eroded be should doctrine 340-341, 334-335, 514 F.2d D.C. at point. ell at this (1975) (Bazelon, 230-231, J. n.39 C. 236-237 may be argument this conclusion Further quoted. concurring) authorities 2518(7) if § that even fact drawn lengthy Chaney, permit 177 So. more 180 Miss. a to Laster v. extended approval, seeking judicial a prior to search this case is what about. is Nowhere develops the law think that manner.17 representations clearer than of the mind, however, in my serious is the More Department State that initiated the sur- apparent selective administration Court’s question. veillance in reasons, this harsh rule. For these I portion from that of the representations began dissent Court’s Those on June which opinion purports permit cog 30, a a 1970 with communication from the defense for John nizable Mitchell to this Department State to the FBI. The making civil action. official Department State having communication referred to re- McGOWAN, Judge (concurring Circuit intra-departmental ceived the memoran- judgment): in the dum attached request thereto “with a do, record this Believing, as I brought it be to the attention of falling within no situation presents authorities,” law-enforcement federal purpose Congressional disclaimer and concluded with an assurance that power “the constitutional to limit Department “the will be most grateful as he to take measures President you anything can todo assist us with Nation necessary protect deems problem.” B-l(l). Exhibit or oth- potential actual attack against point record includes at that protest a a foreign power, acts of hostile er from the Soviet Union to the State foreign intelligence information obtain Department complaining of JDL activi- security of the essential deemed qualified ties that “cannot any- as protect national se- or to thing criminal,” insisting but foreign intel- against curity information law appropriate steps enforcement activities,” have occasion to I no ligence B-l(3). taken. Exhibit The memoran- to reach in order the statute beyond look dum attached the June 30 communica- judgment. in the reflected the result tion was an internal Department State which as document reads follows: III, Title provi- which the foregoing appears, part so is a of the Omnibus The recent JDL raid the Amtorg and Safe Act Crime Control Streets New City office in York is 1968, 18 U.S.C. 2510-2520—a §§ statute series latest in causing increasing of incidents which is which the Court characterized concern to the of- as “a comprehensive attempt in Keith fice of Soviet Union Affairs. I need promote more Congress effective con- previous not recount JDL-inspired ac- protecting trol of crime while priva- tions as you. known to thought cy of individual and expression.” note, however, I should like to 3(52, U.S. S.Ct: at 2129. This activity such JDL is beginning to have Keith, case, like “raises no constitutional negative effect on the conduct of challenge to electronic surveillance as our relations with the USSR: this has specifically authorized Title III been noticeable in the area of cultural nor, .,” the Supreme exchanges. addition, the JDL’s re- say, any question went on “is there physical sort to violence during its raid necessity obtaining doubt as Amtorg on the office possi- raises the surveillance of crimes un- bility of Soviet retaliation interest,” to the national security related personnel Embassy in Moscow. Final- is proviso. interest defined in the as that to me ly, it seems that the JDL 308, 92 S.Ct. at 2132. Id.- at organization of legitimate concern to enforce- lawto authorities, is addressed Federal law-enforcement Title III detection, ment, organization’s embraces in view of activities crime. parts prevention in various of the United States. prosecution, record, reading my (Emphasis That, supplied). Barker, 231-233 United States 17. See 312 at concurring). (1975) (Bazelon, C. J. grateful you I would be if could laws, enforcement criminal and bring our views to the attention of was,- law enforcement in its such that law-enforcement these authorities for way to minimize the the harm- opinion, action they whatever deem appropri- the activities of Jewish of effect ful ate. relations of upon the League Defense B-l(2). Exhibit Union. and Soviet States United actions taken in law enforcement The Department, It not the State but request resulted in a to that response significantly the FBI that shifted rather February 1971 from the Un- letter of Secretary of to the Attorney State der emphasis away from criminal law General, which the first paragraph of request enforcement alone in its to the as follows: Attorney authority tap General for telephone headquarters were Department

All of us in the JDL prompt by with the action pleased purpose obtaining advance for Jury currently Grand Federal knowledge of JDL generally activities so acts of violence attribut- investigating adequate countermea “allow as to the militant Jewish Defense ed to a reason taken.” This was sures the re- hopeful We that League. justification request for its stated resulting pros- indictments and turn tap authority in the memorandum wire Federal will under statutes ecutions of the FBI to the Attor Director to JDL members and demonstrate 14, 1970, September ney General well as to the Ameri- sympathizers, repeated reason which was it was and the com- public can international asking memoranda successive re two munity, the resolve of the United authority.1 of that newal not to tolerate un- Government States upon official and com- lawful attacks representatives mercial objec However, and broader this new fundamentally, More governments. and the by the FBI conceived tive the deterrent effect we that believe to me no seems Justice Department upon violent prosecutions anti-So- than purpose law enforcement less measurably improve the will viet acts At best Department. State that to deal ability of the States the threatened said that might be Union on substantive the Soviet of a kind case were in this crimes foreign policy issues such as those with preferred— greatly would have FBI expressed leaders have which JDL con- by other provision (Emphasis supplied). cern. rather steps prevent precautionary —to B-l(5).

Exhibit why see but I cannot prosecute, than should preference laudable appears generally It thus what State pre- effort to The sought was difference.2 more effective Department make prosecution See Exhibits I-IV. The main- Government is not ascertainable from this the fruits of the surveillance in this tains record. solely purpose pro- used for the case were point response stress this security. Attorney I would viding General’s au- Judge Wright Judge both Wil- claims for the surveillances thorizations indicate key that the FBI’s role in this case was some- they subject out were carried to an earlier thing than that of law I (not other enforcement. record) to the FBI directive itself assume that numerous conversations took attorneys overhearings of defendants place Department between Justice prosecutions and the pending criminal to be Security Depart- and, Council and State possible; National avoided if if could not be ment, Judge Wright avoided, their tenor was as their contents were to be sealed describes, Wright op., see 170 n.39, Depart- not made available other Justice at-n.39, F.2d at 612 and that I, personnel. Exhibits II. See also Ex- ment goal ultimate of all concerned was indeed to (Deposition Mitchell). of John hibit IV at 31 fragile up shore the new and foundations of the fruits of the surveillances in this Whether Judge Since Pratt found no more detente. in fact ever used in criminal case were always fail, in all as to what the investigation’s vent crime can which case is “pri is sure to prosecution mary follow.3 purpose,” since no one can be sure where it of will lead. Even if a concert therefore, disagree, Judge I Wil ed and discrete “primary purpose” may key’s primary purpose assertion sometimes exist in the minds of investi surveillance, per viewed from the of gators, the task of proving or disproving of Department either the spective State it in later proceedings likely is Department, Justice was some or the be frustrating if not entirely futile. the “uncovering than thing other of evi Moreover, a subjective test, such as of I disagree dence domestic crime.”4 Judge Wilkey suggests, invites however, fundamentally, more with his Government to supply national suggestion “primary purpose” purposes after fact; and, to the ex is the proper a surveillance test of the of is tent successful, permits it to ignore applicability.5 statute’s a statute avowedly protective of impor may have both investigation often An tant rights.6 individual purposes. and informational prosecutorial My preference have differ- would be for investigators may a more Different objective test applicabili of these statute’s understandings of which ent outset, no one which it to ty, at allowed be much At least “primary.” easily displaced.7 present pur- at less view have been formed For conscious this, part. no I assert factual error on his than Judge Wilkey 5. “primary enunciates such a that what had to be done fact remains But the purpose” test applicability for the statute’s in- goal to reach was enforce the fra, in order - U.S.App.D.C. pages by by prosecuting law, preventing either and-, pages 516 F.2d on 690 and 694. 170 it, di- of when such violations were U.S.App.D.C. violations rected p. -, p. at 516 F.2d at 697 he personnel. property and at Soviet suggests a different test when he states that Judge Wilkey pre to concede that the seems appears judge If it to the trial that the sole as much a law enforcement of crime is objective vention purpose “foreign of a affairs” or domestic argues prosecution, that the as its but security wiretap was gathering spe- that of “prevention purpose, rather than the FBI’s crime regard cific evidence with crimes enumerated in to one of the se,” per “keep[ing] the Bureau op- section 2516—as every Department informed move the State ment, posed, example, garnering information noncriminal, criminal and might the JDL prevent to ward off or the “hostile acts” of position our vis-a-vis exacerbate which country another he has the discretion —then Wilkey op., U.S.App. Union.” Soviet prevent by an end run around Title III - n.11, 516 690-691 F.2d at n.ll. D.C. holding the (Emphasis surveillance invalid. evidence of is no record the State There added). having requested prior Department’s in principle non-prosecutorial If the is that mo- lawful-yet-exacerbatory about JDL formation movements harassments), inapplicable tive makes the statute if it is (presumbably demonstrations and objectives, one of the my Government’s then I and doubt that such informa disagreement emphatic. is even more significant use to have been tion would it problem sought post FBI to inform 6. The hoc had. That the itself rationalization if it activites, be somewhat alleviated if as well as criminal we could be about noncriminal I sume that the that, independent ready because of an Still I am to as sure constitu- no doubt. requirement, question gaining foreknowledge en tional statute’s applicability tirely agency’s pri lawful was that could also be decided be- activities purpose. mary the fact. do fore We not know whether such independent requirement exists, however, Government’s has been the or not it purpose Whether 3. since I find a test otherwise unac- using of nonstat- fruits practice to refrain ceptable, I do not think it a sufficient reason prosecutions, in criminal utory question surveillances reach the constitutional that its practice clearly supra, might palata- see note answer ble. make such a test more by the Constitution required either statute, expressly the use authorizes confronted, are, When as we now was reason- where fruits such able. question particular of whether a statute re- 2511(3). §See quires the President to utilize the means it explicitly provides him, Wilkey. op., or leaves -, him free to rely powers on his undefined under the F.2d Consti- enough that poses, it is that section feared. It was was with agents apply to when the subjects not intended Congress was, collaborators that in my submission, are themselves so indi- specifically concerned.8 I see to rectly foreign power. strong related reasons not to construe the lan should be taken of the Note exact lan- guage more broadly. 2511(3). It does

guage say § cases, us, such as the In one before inapplicable is to any the statute surveil- the national security where concern is implications, remote, lance with however foreign that a power might purely be relations; foreign for the nation’s it into hostile provoked by acts the activity abjures any merely legislate intent subjects of surveillance, none of respect with to the power constitutional arguably policies underlying the na (in pertinent the President part) security exception tional statute to take such measures as heightened A operative. are necessity of necessary protect he deems the Na- thought is sometimes secrecy to distin against potential actual or attack security surveillances, national guish but or hostile other acts of a foreign pow- nothing secret there is about what the er, foreign to obtain intelligence to, infor- up was the reasons that JDL deemed mation ty essential to the securi- dangerous, thought or even was the fact of the United or to protect of that organization that members were national against information investigation.9 close under There is also foreign intelligence activities. thought to be a judi sometimes lack of competence to deal cial curity with national se nonstatutory surveillances here at matters, but nothing there was issue must be defended as being “neces- least arcane about JDL activities and sary protect the Nation against . implications. may It well their be that hostile acts of a foreign power.” I our foreign conduct of affairs is bet quoted would construe the phrase as re- Department left to the State ferring ter than to only to surveillances directed judiciary, foreign but against agents of, affairs entered with, collaborators only case because foreign this citizens foreign power whose hostile acts are tution, general prefer should in directed at we the former was one States the United within strong- party The President is on construction. his and its front Communist “the domestic footing acting statutory when with est authori- the for- instruments groups remain [who] assume, Congress ty, foreign power should when has and we . . .’’In eign policy of a unclear, proceed it intended that people been he discussing who are within kinds of Case, way. Youngs- may The Steel Seizure 2511(3) in that scope but nonetheless of § Sawyer, Tube v. town Sheet & the fruits of “reasonable” prosecuted (1952), speaks surveillances, L.Ed. 1153 Report still nonstatutory refers Indeed, point. eloquently foreign powers Justice Jack- “agents and those who just suggests such a canon of son construction cooperate with them.” ease, in his statement view of the “[i]n Secrecy quite opposite was of the JDL’s safety expedition Congress with which objective, express which was to exacerbate granted large grant emergency and has can relations and dramatize Soviet-American crisis, certainly ample powers, to embrace this by plight of Russian Jews the commission of unimpressed quite argument with the I am flagrant well-publi- that were as crimes possession should affirm of them that we newspaper reports possible. made cized as Id. at statute.” S.Ct. at 879. without Kahane, part the record Meir a leader of statutory authority (emphasis supplied). The JDL, quoted stating is must “[w]e provided Congress in Title III strikes me as every law to save three million Soviet break “certainly ample to embrace this in- crisis” Schwartz, Threats and Bombs —A Jews.” in this case. volved Nations, Times, Nasty Phase for the Two N.Y. S.Rep.No.1097, Cong., Sess., 8. See 90th 2d reported Exhibit C-2. Also Jan. (1968), Cong. Admin.News, U.S.Code & individual’s boast that the first the same “[f]or 2112, 2182, pp. (quoted length fifty-three years, the Soviet Jewish time in Judge Wilkey’s op., Page throughout problem One the coun- at---, 693-695). 516 F.2d at The Re- responsible try, for that.” N.Y. and we port’s only example foreign of a News, 13, 1971, se- Daily Exhibit Jan. C-3. curity might place surveillance which take unlawful, ities, are such as being of actual and threat- without victims and, offenses, attention of as has al- attract ened criminal clear, politi- of a are bound made ex- ready power, been self-expressive nature. Department least concern State cal or pressed offenses be averted or those are, Amendment concerns First Such prosecuted. course, vividly illustrated the facts paragraph The first of Mr. case. pro President that the holding A requesting memorandum initial Hoover’s acts of a “hostile tect authority is as follows: wiretap own citizens upon our spying by power” such they may provoke because simply organization has captioned The particularly gaping a and opens acts emerged the as most militant recently statute. The fol hole in the dangerous organization active in the pro-Jewish among mind as quickly to lowing come States. It has demonstrated subject to non-statut who would be those for proclivity demonstrations and its theory: under ory10 surveillance attacks on Soviet and Arab violence detente, on opponent of Congressional country, installations in this diplomatic that in it must be known ground the by participation well as as demon- he action when will take some advance in New City, York which strations negotiations; delicate trade to unsettle to injury private citi- resulted have information, of confidential on leakers and law enforcement officers. zens ground they destroy will the the reported media the News candor of communications with trust League the Jewish Defense leader (JDL) allies; resistors of Ameri organized our 8, 1970, September on stated actions, ground on the military can organization might attempt to that his troops and incite demoralize they groups Arab terrorist hijack corporations, on enemy; multinational surrounding tensions the Mid- current of the law by that violations ground East situation. dle major are a cause of corporations seen that the reference is ill-will; It will be suspected perpetrators foreign “demonstrations,” and to violent that can become an “inter both crime people property; as well (the smuggling of an attacks incident” hijacking. of airline In the threats foreign country, out of a as treasure art memorandum, paragraph of that second large it of amounts of into smuggling narcotics, etc.). impending op- refers to the Director of the JDL “for violence or portunity foregoing only list is The intended to lead- demonstrations suggestive, says but what it to me be that, sup- furtherance of JDL aims for ers in the activities under where Govern- Israel the Jewish race.” port foreign-related are ment surely “or” is not without tell-tale The way only by reaction duality of these ex- significance. those activities provoke, likely are may perhaps is subtle below pressions criminal, to be either in which case the consciousness, but its conse- level should submit Congress’s Government leads, can be substantial. It quences only certain pose decision crimes present submission, Government’s justify surveillance, threat sufficient conclusion that the warrant re- legal Amendment, protected or First of Title III need not be ob- quirements case there ordinarily which should be no served, in turn means that all, After surveillance. if domestic activ- can, constraint without FBI non-statutory pie, it leaves the 10. The word is used Government free because it from what may very important be that surveillances of to me the this kind seems constraint of subject public having require- to a constitutional to make nature and amount may not, however, provide The latter See § ment. anything of its surveillance. protection. like the same For exam- as signifying personal statute, to its stores of derstood convic- add information no such demonstrate, exception tion that people who as exists. We well about may not committed, may ultimately hold, who have so but may those as complexity and importance thought likely commit, reasonably be require that we problem address it crimes. most sure-footed way, in our is to This, my conception, exactly was the concrete say, on facts of a case Title III designed prevent. what the issue squarely. presenting law why enforcement It authorities not, by an expansive reading of should If when we upon called foreign intelligence proviso, convert question, decide our task for more effective requests enforcement complicated greatly by our having held opportunities the criminal laws into that, today wherever the Constitution re- privacy, warrantless invasions of es warrant,, quires a requires statute where, here, those pri whose pecially some, compliance albeit concededly vacy affinity is invaded have no with the all, its mandated procedures. foreign power whose acts are hostile holding, That in my view, flies in the professed Government’s concern.11 Supreme face of both the Court’s Keith the opinion and statute itself. Wright’s gen Judge discussion of whether there should be problem former, eral to the As the plain meaning of security exception to the con a of Keith seems to me to be language the requirement, though warrant stitutional there are that certain security scholarly extraordinary effort of pro a surveillances to which the statute was seems to me to portions, unnecessary.12 apply, not intended and that the sur Moreover, unreserved concurrence in it then veillance before the Court was one me, only, or so it to seems be un- It of them.13 is perhaps could possible to read nothing 2511(3) There is in Keith inconsistent with does, Judge Wright § not construe as application of the to disagree the statute the surveil- I interpretation however. his us, assuming now before even that the lance the “constitutional” in word that section as thought inapplicable making Court it to the “contingent” the statute on the Consti- place sense, that took in that case. any For surveillance one tution in even the limited sense of thing, exempted that surveillance was un- requiring its never warrant if the Constitu- part 2511(3), referring different that require § der a not tion would one. The word “consti- power, presidential refers, constraint my to without tutional” the view;, source of statute, protect “against the powers the overthrow presidential which are left undis- by other by of the Government force or unlawful Precisely the statute. turbed which of means, against any present or other clear and powers (and those did leave undisturbed I danger entirely to the structure undisturbed, and existence the think rant language constitutional war- important, the no) More surveil- requirement Government.” lance was or are defined against 2511(3), directed individuals who of § within which sur- thought to were themselves the national be source of simply now before us veillance fit. does not I think, words, not, threat —in that case the Congress other do that dynamite bombing of an office Central this cared whether tionally surveillance could constitu- Agency Intelligence than indi- have been carried out without war- —rather only indirectly whose actions viduals could not a rant. It is surveillance within the true bring about such a threat. foreign national area of which Con- wary, gress sowas and in which it therefore my objection primary Wright’s Judge legislate. not to It is chose area instead within the question is constitutional to reach failure regulated the statute. 2511(3) disclaims § view that his on based require Congress part of intent on Wilkey Judge has well stated the case for could constitu- President where warrant interpretation only this of Keith. The fact of Wright one. tionally proceed without significance to , me that he has omitted is - that n.46, F.2d U.S.App.D.C. at op. 170 White concurred Justice in that case view, I Clearly, if I shared at 614 n.46. ground applied. that the Apparently statute inquiry case without in this end the could majority disagreed, as it could not have satisfying myself the surveillance that first Judge Wright’s reading done were of the stat- exception encompassed by some ute one. the correct requirement. I do the constitutional known, if person, committing the phrase, “did not as of- legislate,” Court’s ”.; fense . . “legislated contingent upon the Constitu possible It is also to that conclude tion.” 2518(3), allowing judge —§ to is- stated later in its Keith when only sue a warrant if perhaps Congress “would opinion (a) is probable belief; there cause for statutory procedures inappli judge” that an individual is committing, has security surveillance, to national cable committed, or is about to commit a U.S. at it meant particular offense enumerated in sec- perhaps Congress “would reconsid tion 2516 this chapter; applicability. their Even if these er” (b) probable there is cause for belief meanings commended them possible particular communications con- ones,14 more to us as the sensible selves cerning that will offense be obtained obligation is remain faithful our such through interception; probable meaning most Court’s Keith, I believe cannot (d) probable is cause there for belief one which can meaning de which, facilities from or the employment of in by the as much rived where, the wire oral place commu- Judge Wright has shown. genuity are to be intercepted nications are be- used, or are used, about ing important, Far more since the state with the connection commission of in Keith are event, dicta in any ments offense, or to, are leased such listed in statute itself. To the textual and of, commonly name used by arguments that Judge Wilkey historical person. forcefully quite made against has 2518(4)(c),requiring that the —§ war- applicability to all statute’s surveillances contain “. . .a itself rant statement warrant, I requiring a will only add this. to offense which it particular of the re- ” Judge Wright has somewhat understated lates; procedural provisions number of 2519(l)(e), requiring —and the judge § statute which will have to be altered to the report Administrative Office to they ignored before are applied or to Courts, thirty the United States within national security non-criminal surveil a surveillance’s termination days of or mentions, He as calling lances. for this denial, specified “the offense in the or- treatment, enumerating § application.” der or which may offenses criminal form the perva “offense” is thus The criminal surveillance, justification assumed 2518 and 2519. sively §§ It 2518(l)(b)(i), requiring the applicant § linchpin operation of the is the of those give a warrant to details of the off sections, giving strong reason to doubt There are also ense.15 the following: applied, intended Wright them, requiring Judge apply the war- 2518(l)(b)(iv), where —§ no give identity “the is offense at all.16 applicant there rant Wright op., U.S.App.D.C. Judge Wright also 15. See sets out a number of advan- at - n.266, gained 668-669 tages considering 516 F.2d at n.266. could be from which applicable to all Title III as court-ordered sur- that, agree op., Wright 16. Neither can I on the basis of veillances. 2511(3)’s any at---, disavowal of § intent to limit 516 F.2d at 667-669. He also powers, concedes, however, (in my judi- President’s statute his should be strained cially view) reading only security tailored to fit national statute is of the not cases. accepting Judge many Wright’s suggestion way advantages. Even achieve of those statutory procedures U.S.App.D.C. at---, those Id. 170 altered “unduly Nothing prevents which would otherwise at 668-669. trammel” or courts “substantially affect” selectively incorporating the President’s whichever powers, is, procedures truly appropriate result the statute’s again, surgery once more radical on “reasonableness” which stat- as elements Judge Wright ute require. than has Among described. both the Constitution statute restrictions warrantless wiretapping ROBB, Judge (concurring): Circuit vanishing point, to the for the actions of result and in Part III I concur any group organization almost or in this Judge Wright’s opinion. ofB country, even such a body as the conven- League Defense is a do- Jewish The major of our tion of one may political parties, organization. Its members are mestic foreign affect policy agitate or there the United States and citizens foreign nation. or suggestion of connection col- no government’s position cannot be League between the or its laboration by the proviso sustained second of 18 any foreign power or for- members 2511(3) or by § U.S.C. the constitutional agent agency. my opinion or eign power of President to which it re- the electronic surveillance of therefore proviso That recognizes fers. power its League members cannot be President “to take such measures as proviso under the of Title III of justified necessary protect he deems the United Control and Crime Safe the Omnibus States the overthrow of the Act, 2511(3), 18 U.S.C. § Streets by force or Government other unlawful power “the constitutional recognizes means, against any or other clear and take such measures as the Presidént danger to the present structure or exist- necessary protect the Nation he deems of the ence Government.” Any conten- potential attack or against actual oth- that the activities of the Jewish De- foreign power, of a hostile acts er League fense threatened the overthrow intelligence information obtain government presented a clear essential to the deemed present danger to its structure or protect or to national se- is, think, I existence chimerical. What- curity against foreign information intel- prerogatives ever the constitutional activities.” I proviso, think that ligence the President in the field of national se- power and the constitutional of the Pres- be, curity may the facts of this case do refers, relate to which ident justify their invocation. On this foreign powers activities and their case the Keith point conclusive. to those of American citizens agents, having short, no connections. In The violence directed at person- Soviet the case is controlled in principle I think League, by the including nel the bomb- v. United by United States States Dis- installations, ing justified of Soviet an (Keith), 407 trict Court under 28 application U.S.C. 2518 § for an (1972), 32 L.Ed.2d 752 so that be- authorizing tapa order on the League’s installing wiretaps question the in fore Thus telephones. 18 U.S.C. 112(a) § government was required the to obtain a it a felony to assault, makes strike, pursuant to the procedures warrant es- wound, or offer violence to a foreign III, by Title 2510- tablished U.S.C. §§ guest. or official official Any person explosive who uses an to commit that reject argument I the that the surveil- felony subject imprisonment for not proper was because lance the activities one year than nor less more than ten Jewish Defense League displeased the of 844(h). 18 U.S.C. years. § Moreover foreign government or related to for- 102 of the chapter Code, Criminal logical Carried to its affairs. con- eign 2101-2102, relating riots, §§ U.S.C. argument would reduce the clusion apply seem to at least some of recordings 2518(l)(f); of all inter- and procedural requirements § are statute’s the the immediately made available applicant give ceptions following: that an for a warrant preserved as he directs for judge, complete issuing to be statement of the facts and “a full 2518(8)(b). years. A Presi- Id. § applications ten concerning previous least all unwilling reasons for any persons, who involving dent of the same facilities or requirements might consider comply 2518(l)(e)(1970); places § . . U.S.C. carry power to out his “trammeled” applicant for extension of a warrant that an point of surveillances thirty days divulge beyond maximum “the its impossible. making them far obtained thus id. results constitutionally objectionable all wire League’s activities the concerted in taps perforce violation of Title III, III Turning to Title we find members. that, therefore, the statutory dam 2516(l)(c) specifically § that 18 U.S.C. provision of ages section is applica application for a wiretap an authorizes this view, ble to case. In my the case involving unlawful in cases use should be remanded to the District felony; commit a explosive of an solely for consideration of the 2516(l)(a) merits authorizes such § U.S.C. damages a claim under the in involving cases Fourth riots. application Amendment.1 Congress may not Granted upon impinge the constitutional statute The appellants’ claim of damages for President field prerogatives an unlawful search and seizure rests on foreign affairs or the national securi- statutory both constitutional in I think the surveillance this ty, case grounds. The constitutional claim will to domestic crimes specifically related be discussed in Part II of opinion. III by Title and not to covered matters Part I examines the alternative prayer may confide to Constitution under section 2520of the Omnibus Crime discretion dealing President’s with Control and Safe Streets Act. That sec or the foreign nations national security. provides tion for the recovery of civil of a government interest The damages by those “person[s] whose wire our criminal laws Ameri- violations or oral communication is intercepted, dis did remove the coverage can citizens closed, or used in violation of this chap III. Title e., ter III Title Act, [i. 18 U.S.C. §§ The pivotal WILKEY, Judge (concurring 2510-2520].”2 Circuit issue un * der the claim for (as statutory dissenting): distinct constitutional) from damages, then, plurality’s finding I concur whether the appellees any provi violated on Jewish Defense wiretaps sion of Title III when they placed wire placed pursuant were League taps on phones of the Jewish De power, “foreign affairs” President’s fense League (JDL) without prior holding that warrantless also judicial approval. Resolution of this is nevertheless was violation surveillance first, sue depends, upon whether If a Fourth Amendment. “for- wiretaps placed pursuant to a “for exemption affairs” war- eign eign affairs” and, second, exists, exists requirement rant upon whether the strict procedural re category wiretaps a narrow quirements Title III have any applica or collaborators with a agents tion to this kind of surveillance. As this is such a foreign power. for another time case, leave resolu- we I. THE STATUTORY CLAIM of the existence and question special A. of this consti- parameters Scope of a precise “Foreign Affairs” exemption. Surveillance tutional however, dissent, strongly Title III of the I must Omnibus Crime Con startling conclusion trol and colleagues’ Safe my Streets Act3 authorizes the * C. opinion Collaborators and this is as follows: outline of The Non-Collaborators Foreign with a Power Statutory Claim The I. Spectrum D. The of Executive Electronic Scope “Foreign Affairs” of a Sur- A. The Authority Surveillance veillance Meaning 2511(3) of the Section B. The 1. See Bivens Six Unknown Agents Named Disclaimer 29 L.Ed.2d Claim II. The Constitutional (1971). Exemption “Foreign Affairs” A. The —In- and Limitations Distinctions ner (1970). 18 U.S.C. § Foreign for the Affairs Ex- Rationales B. emption Balancing of Constitutional —the 3. 18 U.S.C. §§ 2510-2520 Rights Powers, Responsibilities, and foreign of electronic . and the conduct of use af for the area, latter classes of crimes set as the forth in fairs.” dis section reads, claimer itself Title III does

2516. Sections and 2520 provide penalties power civil “limit the constitutional criminal and of the for violations take such however, Act. President .to measures as he of the Section also necessary protect to categories several deems against specifies Nation conduct potential actual or are either not attack or which unlawful or oth are not acts by foreign er hostile of a regulated power Act. One such catego- u 7 ry (3) is defined subsection pro- which pertinent part: vides appellants The in this case apparently language wOuld construe this to allow chapter in this Nothing contained the President freedom of action in intel- limit the constitutional . shall ligence gathering only when the country to take power of the President actually exposed was to an armed at- necessary as he deems measures tack. Neither of the principal reasons against actual the Nation or protect by the given Government for conducting attack or other potential hostile acts of wiretaps question (1) the severe — power, to foreign obtain in which the strain activities of the JDL information telligence deemed essen placed on the conduct of our relations to the security tial of the United U.S.S.R.; (2) the threat of re- protect or by taliation Soviet against citizens against foreign intelli information Embassy American personnel in Mos- gence anything activities. Nor shall danger cow—involved serious of war chapter in this contained deemed with the follows, Soviet Union. It ap- power the constitutional limit pellants argue, that the Executive was take such measures as he President justified in treating the conduct of necessary protect deems wiretap this differently from an ordi- against overthrow States nary criminal wiretap. by force or other unlaw Government appellants’ The position is by refuted means, against any or other clear ful language both of the disclaimer it danger to present the structure or by self function which the sur of the Government. existence veillance served. In the place, first sec any wire or oral communi contents 2511(3)preserves tion the President’s au intercepted by authority cation thority protect the nation not only in the exercise of the fore President “actual against potential attack” but going powers may be received in evi also “other hostile acts” of a for hearing, trial dence in or other eign country. disjunctive That intercep where such proceeding wording was intentional is made clear reasonable, and shall not Report, the Senate explains except used or disclosed as is otherwise necessary the President’s authority is unfettered implement power.4 by Title III “to obtain information According Report protect of the whatever means to Senate the United Act,5 2511(3) from the acts the section disclaimer was States of a power including actual potential “to reflect a intended distinction be attack or foreign intelligence administration of domestic tween the activities.”8 “Hos [by foreign power,” tile acts of a legislation therefore, criminal President] Admin.News, Cong. & 2511(3) (1970). 6. Id. at U.S.Code 4. 18 U.S.C. § 1968, p. 2182. Report S.917, 5. on Omnibus Crime Control 2511(3) 7. 18 U.S.C. § 1968, S.Rep.No.1097, Safe Streets Act of Cong., (1968), Cong. 2d Sess. S.Rep.No.1097, U.S.Code 90th & Cong., Sess., 90th 2d at 94 Admin.News, 1968, p. 2112. (1968), Cong. Admin.News, 1968, U.S.Code & p. 2182. power, fairs it must situation include a category clearly a which includes arm- is rupture diplomatic of ties a is where against country this aggression ed threatened. components. It would as one of its cer- then, tainly prevention appear, that the the by is buttressed con position This on an attack American citizens of abroad The question. duct of the surveillance fits within category. also that broader the surveillance was in function to conceive ap- It is difficult of more was not one of primarily to serve tended situation for utilization of the propriate uncovering of domestic crime. evidence foreign President’s than power affairs in Rather, acquire purpose was to ad protection of Embassy per- American physi of the knowledge tactics vance in another country. sonnel prac cal intimidation harassment by diplomatic the JDL on

ticed Russian country in this personnel important, of the in view re Equally —with design “creating] crisis be avowed of the to conduct sponsibility relations, intent of foreign our tween the U.S. and the U.S.S.R.”10 —in to 2511(3) recognize in section Congress order to minimize the disruptive effect requirements informational which in of these on activities our relations with proper of this exercise res here Soviet Union. This was an informa purview of the term tional ponsibility,9 surveillance of the type Congress appear “hostile acts” also in intended to separate from ordinary crim diplomatic retaliation. inal wiretaps by clude inimical virtue of the section 2511(3) well-being country of this can That disclaimer. It was an intelli from a breakdown greatly operation gence suffer undertaken pursuant friendly country relations with a like the the President’s power constitutional beyond question. Union If country’s Soviet conduct this foreign affairs, as any special investigative President has distinct duty from his to administer do virtue prerogative of his af- legislation.11 mestic criminal against was not to enforce the criminal laws Ibid. primary responsibility pro- the JDL—the for B-3(ll), H. 10. Def.Exh. If tecting personnel U.N. from criminal acts is McGowan, concurring Judge authorities, in the result vested New York state not the Judge Wright’s opinion, plurality disruptive reached FBI—but to minimize the effect of contrary position group’s law enforce- takes the activities on our relations with the ment, intelligence gathering, pri- was the Soviet Union. mary purpose sure, surveil- Government’s Department To be the State was support JDL. He finds his grand lance of the cheered when it learned that a federal Department jury investigating State memorandum in a view which the activities of the notes, first, quoted by the activities of the Judge McGowan, In a JDL. the letter having negative Department expressed “a effect on the con- JDL are Attorney U.S.S.R.”; relations hope pros- duct of our second, General its the indictment and bombing Amtorg JDL’s ecution of JDL members under federal statutes possibility (Opinion Soviet McGowan, “raises retalia- Judge office would follow. Embassy personnel -, 682.) supra, in Mos- F.2d third, and, cow”; organi- that “the JDL is an letter, It is clear from the remainder of the legitimate however, Department’s concern Federal law-en- zation forcement that the desire was not wrongdoers justice authorities.” This memorandum brought so much that the FBI on 1970 with prosecu- 30 June was sent as that “the deterrent éffect of such stating Department upon cover letter “the will tions violent anti-Soviet acts will mea- you anything surably grateful improve ability can do to be most of the United problem.” (Exhibit 1(2).) this assist us with States to deal with the Soviet Union sub- B— policy (Ex- stantive issues . . ..” receiving request, the FBI After short, B-l(5).) Department hibit viewed criminal the State permission asked from the Attor- should have ney prosecutions potential- as one tap telephone of the JDL General ly achieving overriding effective means of its obtaining purpose advance knowl- for the edge maintaining goal good relations with the activities, organization’s rather Soviet Union. purpose gathering evidence for than for the criminal Certainly FBI did not misread the hardly surprising. prosecutions, Department’s general request for assistance Department principal concern of the State my agreement with the plurality Thus, I concur in the this plurality’s deter- point. my mind, To however, it is the wiretaps mination that clear in question if particular a surveillance falls placed pursuant the into to President’s category the of foreign affairs, as in special responsibility this to conduct the case, or domestic security, as in country’s foreign affairs, within the States United States District meaning of the Court 2511(3) section disclaim- (Keith),12 its validity is subject only This er. does to mean the surveillance constitutional strictures.13 I strongly immune from minimal constitutional disagree the plurality’s requirements. Part II view below elaborates good Keith itself is a The illustration. de- to de- the Bureau determined that another when conspiracy minimizing a impact fendants were indicted for of the adverse of the means stroy (407 government property. foreign U.S. at on our activities relations would JDL’s 2125.) Despite may organization’s plans 92 S.Ct. the fact that it the to learn of in ad- be vance so as to proceed objects possible for the FBI have been cording ac- forewarn the of its dem- III, however, provisions possibility to the of Title and avert the of onstrations vio- Contrary Judge the flexible Court indicated a much more lence. McGowan’s conclu- sion, procedure (407 preventive would suffice. did U.S. at this action not have as its 2125.) appears contradictory, purpose crimes, gathering specific It of evidence of hand, Judge prevention per on cept of the one McGowan to ac- or even crime se. duty primarily apply that Title III was not tasks were the of intended to These local other, and, Rather, argue on the Keith Government must enforcement authorities. law FBI’s monitoring proceed according activity keep to the was intended provisions Department statute’s whenever a Bureau and the State in- criminal viola- movement, every suspected. of is formed criminal and non- Judge criminal, might gives reason JDL The second McGowan which exacerbate . applying procedures position Title for is that the section Ill’s in this our vis-a-vis the Soviet Union. case 2511(3) disclaimer was apply government intended to lances are directed orators when surveil- 12. 407 U.S. 32 L.Ed.2d 752 against agents of, or collab- with, power. foreign (Opinion a of McGowan, Judge opinion, concurring McGowan, U.S.App.D.C.at-, Judge in his agrees 683-684.) infra, F.2d at As I discuss in II Part the collaborator/non-collaborator meaning distinction plain language Keith may dealing be scope useful when with the to me be that there are seems certain power the President’s engage in electronic surveillances to judicial approval; prior surveillance without apply, III] statute was not intended to [Title but, utility I think the of the distinction breaks and that the surveillance then before proce- down III when issue is whether Title was one them. particular dures are mandated in a case. Judge McGowan, (Opinion App.D.C. supra, -, 686.) p. p. F.2d at purpose 2511(3) me recog- section tois Nevertheless, why he finds two reasons Title nize “a distinction between the administration procedures, provision damages, Ill’s legislation of domestic criminal . . and applicable instant case. foreign (S.Rep.No. conduct of affairs.” upon proposition first rests Cong., The reason (1968).) 90th 2d Sess. 94 The particular wherever a power statute can be uti affairs of the President is no lized, (Id. implicated must be. country’s less of “hostile acts” when another threat n.7.) Despite -n.7, fact 516 F.2d at 683-684 country trig- this is particular purpose primary sur that veillance gered by the activities of non-collaborationist informational, is if there group domestic than when the threat comes prosecutorial is, (that any expec element in it foreign agent. from a collaborator or The discovering violations), question tation of the criminal then is not whether non-collaborators procedures laid protected by down in Title III must be should be ment’s Both the Fourth Amend- difficulty position requirement followed. immediately apparent. with this is prior judicial approval. majority my opinion The vast plurality that of the exempted activities whose surveillance protected. make clear that must be so provisions 2511(3) Rather, the will ty. Title III section question is whether the President’s perforce involve some element of criminali guide need for information to his efforts in the require proce If the courts were to Title III subject field of affairs should be every procedural dures to be followed in case where there requirements geared strict — violation, scope of criminal prosecutorial evidence surveillances—of Title III. I 2511(3) drastically section as to render so reduced hampered, he think language should not be so and the virtually meaningless. section 2511(3) of section bears out foreign intelligence applicable to larly procedural requirements of Ti- strict the uncovering evi- operations. Often and, concomitantly, damages tle III— activity only a sec- criminal dence ondary contained in section 2520—are provision objective objective. primary The to these applicable special kinds sur- which the intelligence upon obtain is to veillance. judg- can base an informed President 2511(3) Meaning of the Section B. The foreign affairs. the area ment Disclaimer requirements rigid procedural The Keith, Court was necessity of the substantive III and Title interpret significance to upon called cause to sus- showing probable prior 2511(3) as it section disclaimer activity geared are not to- criminal pect authority gath to to Presidential related informational surveil- kind of ward concerning information intelligence er in- Congress recognized and That lance. country. security of internal point up this limitation on to tended “the conclusion inesca found quite by clear III is made of Title reach Congress' only intended pable for section of the rationale the discussion not simply that the Act did clear make Report in the 2511(3) contained Senate’s security respect to national with legislate Act. Its direct relevance to this Congress For surveillances.”14 involved in case at other issues and complex important “the dealt quote: an extended merits bar single brief security of national area (3) Paragraph is intended to reflect paragraph nebulous between administra- a distinction sensitivity with the comport would legislation criminal of domestic or with the ex involved problem constituting a danger to the struc- Congress exercised in traordinary care of the Government or existence ture of the Act.”15 drafting other sections foreign affairs. It conduct nothing pro- it clear that makes appear apply This rationale chapter or other act amended posed force to a case greater involv with even legislation is intended to proposed gathering concerning intelligence ing power of the President limit security country. It has external information whatever means obtain recognized been that the President long from the the United States protect special responsibilities constitutional has foreign power including actu- of a acts prerogatives foreign in the field of foreign attack or intelli- potential al or Congress respect intended to affairs.16 activities, danger other gence by virtue of section prerogatives those or existence of the the structure this, 2511(3). “Few would doubt as the foreign Where affairs Government. among things other section refers — —to involved, are internal ‘against potential actual or at protection of court ordered elec- system proposed foreign acts of a other hostile tack or ”17 envisioned for the tronic Moreover, the factors which power.’ criminal of domestic administration auditory searches for differentiate evi necessarily not intended legislation crime from informa specific dence may, The two areas applicable. to be tion-gathering particu- surveillances (See accompanying text view. notes 8 and 9 Ibid. supra.) 2511(3) Note that section not- Belmont, generally United v. States recognizes 16. See authority protect the President’s (1937); 81 L.Ed. 1134 S.Ct. country against U.S. “hostile acts of a Curtiss-Wright Export Corp., v. States power” (emphasized by Judge McGowan) but (1936); 81 L.Ed. 255 S.Ct. intelligence also “to obtain information Lines, Chicago Air Inc. Southern & essential deemed of the United Steamship Corp., 333 U.S. (See Waterman accompanying text States.” note 4 L.Ed. 568 supra.) at 2130. 92 S.Ct. at 2131. 407 U.S. at provides strong language support This however, overlap. Even though their Congress the view that intended a place take activities within the United which falls “within the field States, the domestic party Communist foreign affairs” to be the “outside groups its front remain instru decisively, scope Most be- [Title III].” ments policy of a for Congress it was apparent cause that (Communist eign power Party, U. S. surveillances would not be authoriz- v.A. Subversive Activities Control or conducted in the same fashion as ed Board, 81 S.Ct. 367 U.S. 1 [6 ordinary wiretaps, criminal the third and (1961)). L.Ed.2d Consequently, 625] 2511(3) sentence of section dis- last they fall within field of foreign provides specially claimer for evidence of affairs and outside the scope of the incidentally crime which is domestic un- Yet, proposed chapter. their activities during foreign intelligence op- covered may involve violations of domestic court, eration be admissible not- legislation. criminal See Abel v. Unit withstanding the fact that III pro- Title States, ed 362 U.S. 217 [4 (The were not only cedures followed. L.Ed.2d These provisions 668] requirement is that surveillance have proposed chapter regarding na minimal met reasonableness.) constitutional standards of tional internal pro thus provisions If Title Ill’s vide that the contents wire or “foreign extend to affairs” do not intelli- oral intercepted by communication gathering, gence appear quite would authority of the President may be re that the clear Executive’s failure to con- any judicial into evidence tri ceived a surveillance in accordance duct with hearing. Other al administrative provisions is not in violation of those wise, seeking individuals the over Act; therefore, damages provision of Government, including throw inapplicable. 2520 is section agents foreign powers and those them, cooperate with who could not be Confronted with the Supreme Court’s legally held accountable when evidence unqualified interpretation of the section activity of their unlawful was uncov 2511(3) in Keith, disclaimer and the Sen explanation incident to the exercise of this clear ered ate’s of the section’s only meaning in power by report, the President. The lim its Judge Wright, for plurality, argues nevertheless recognized itations on this use is that that. III is applicable Title First, this case. interceptions be deemed reasonable suggests he a reading of Keith under based an ad hoc judgment taking. the Supreme which Court’s view that into all consideration of the facts and Congress in Title III legislate” “did not circumstances of the case, individual respect with to the kinds of surveillances is but the test of the Constitu 2511(3) treated section re (Carroll itself question fer whether the Execu 267 U.S. 132 L.Ed. [69 543] tive was free of the require (1925)). The possibility that a conducting ment in such surveillance.19 authorization interception argues he Second that the Court’s discus could or could not have been obtained of possible sion standards procedures the proposed under chapter would be national security surveillances should only one factor in such judgment. as indicating be construed III Title preference No should given to ei requirements are controlling in all alternative, cases ther since this would tend prior judicial approval where required, the very power limit provi Congress might provide but choose to recognizes sion is not to be deemed rigorous procedures less that would still disturbed.18 Plurality Opinion, Sess., Cong., S.Rep.No.1097, 2d 90th Admin.News, 1968, Cong. at---, (1968), & U.S.Code 661-663. p. 2182. inescapable Congress only intend constitutionally acceptable.20 Third, simply make Act ed clear to. position, footnote, he in a takes legislate with respect did na explanatory statement in the Senate security surveillances. tional [Cite]22 Report “not inconsistent” with the interpretation plurality’s section argument most can be Only the tenuous 2511.21 made, language, in the face of this position in Keith Court’s Wright’s Judge difficulty procedures per- III was that Title fol- illustrated argument is first surveillances, apply except all force language from Keith: lowing in no consti- those which warrant is for authority of to express grant The tutionally required. If were the is found in surveillances conduct objects in, case, of the surveillance Attorney authorizes the § eligi- themselves would have been Keith application to make to a fed- General statutory damages. recover That to ble pro- may surveillance judge when eral possibility is no intimation of this there certain offenses. of evidence vide is opinion certainly Court’s not described with me- These offenses for the Court surprising, clearly was of specificity. care and ticulous the procedural view require- Act were never to the Act authorizes surveil- intended Where ments lance, procedure security to be apply followed surveillances. (1) “incongruous” in 2518. Subsection was think that Con- It specified § legislated requires judge procedures application to a for such sur- gress thereof “in jurisdiction prior competent single for a brief nebulous veillances especially in detail approval, paragraph,” states view of the order appli- required Congress given in such had information care the rest of (3) pre- laying precise act to down standards cation. Subsection [Cite] necessary prob- ordinary elements of criminal Rec- scribes surveillances. for judge must find ognizing provi- cause which these “interrelated able authorizing permissible an order issuing delineating intercep- before sions (4) interception. particular sets forth criminal activity upon Subsection tions of required carefully specified contents of conditions” such an order. should sets strict to national (5) applied security time limits Subsection surveillances, in sec- Congress Provision made in subsec- affairs an order. 2511(3) for made clear that the Act (7) emergency “an situation” tion legislate” “simply respect did not with operations. such In view of these and other interre- provisions delineating permissible Any doubt as to the Court’s lated interceptions particular plurality’s ac- to the criminal position contrary — upon carefully specified argument dispelled end tivity condi- at the second —is tions, opinion been the Court’s incongruous suggestions it would have Congress legislated possible statutory with standards other for govern important complex procedures to the domestic secur respect single Although in a ity area of national surveillance.23 it had ruled requirement This paragraph. and nebulous the warrant brief comport sensitivity applicable with the was would Fourth Amendment surveillance, involved or problem the Court made clear of the Congress exercised extraordinary type procedures care the same re drafting ordinary sections of the .Act. III for criminal other Title quired constitutionally think not be wiretaps therefore the conclusion We 304-06, at---, S.Ct. at 2130-2131. 20. Id. 170 U.S. at 22. 407 Id. at Id. at n.232. Thus, those required operations kinds of Court’s discussion in Keith specified 2511(3). in section possible procedures of not, standards and Court recognized it, plurality as the would have “domestic sur mere- may involve policy ly gratuitous commentary veillance different on the flexi- Fourth practical bility considerations from the Amendment’s “rea- of ‘ordinary crime’ standard. sonableness” The Court ”24—in had light frequent informational, purpose concrete the more affording objectives opposed evidentiary, Congress guidance on the kinds of distinctions, these statutory Given procedures former. which would be observed, “Congress constitutionally acceptable wish to if Congress, Keith, protective consider standards for should legislate the lat decide to after differ already ter which from those pre security. the area of domestic specified scribed for crimes in Title That the Court’s perception of Con Among might III.”25 these be different gressional intent with respect to section probable cause standards and relaxed 2511(3) was correct is amply supported reporting requirements. time and Report the Senate Act. Its sum: begins discussion explanation with the “[pjaragraph (3) that is intended to re pre detail the attempt We do not distinction flect a between the adminis security for domestic cise standards tration legislation of domestic criminal our decision any more than warrants . the conduct aff the refined re sought to set Katz in Report airs.”27 The emphasizes then criminal specified the for quirements “[wjhere foreign that affairs and inter Ti which now constitute surveillances security involved, nal are the proposed however, hold, that We do III. tle system of court ordered electronic sur approval required for prior veillance envisioned for the administra security surveil of domestic type the legislation tion domestic criminal case that in this lance involved not necessarily intended be applica may made in accord approval such ble.” Activities that “fall within the standards as such reasonable with ance field of affairs” are “outside the may prescribe.26 Congress the scope proposed chapter.” Finally, Supreme If the was of the view Court Report explains, the because violations Title constituted of III is Keith that in of domestic legislation criminal might be specified requirements for “refined during uncovered a foreign affairs or na surveillances,” certainly it is dif- criminal security surveillance, tional which would position plurality’s credit the ficult necessarily be not conducted in accord at the time believed same the Court that ance with Title III procedures, it was to accommo- III intended that Title Congress’ in intent line last of sec very requirements different date 2511(3) to make clear that evidence security “foreign affairs” domestic of such criminal conduct is nevertheless Rather, as the Court surveillances. admissible perpetrators —so clear, view its was that crystal made long as minimal constitutional require not legislate did intend to with Congress met. ments the types in- of surveillances regard plurality’s attempt The to reconcile 2511(3). in section This was the volved Report language Senate It could section. hardly purpose theory unpersuasive. case is its otherwise, per- Court have been contemplate, does indeed Report The it, light fact that ceived words, post a plurality’s “that hoc provisions the Act are of- interrelated of reasonableness determination inapposite [of to informational totally ten n (cid:127) 2511(3) will be made section surveillance] surveillances. 2140. Id. at S.Ct. at Id. at S.Ct. at 2139. supra. accompanying Ibid. 27. See text seems proceedings.”28 language in criminal This does of this import mean, however, that the Report nec appears judge it to the trial clear. If essarily expects a prior objective “foreign the sole of a af- would never be obtained in case. wiretap was or domestic fairs” emphasized As gathering specific evidence with Keith, very “definition of ‘reasona to one of the regard crimes enumerated turns, at part, least in bleness’ on the opposed, for example, section 2516—as specific commands more of the warrant information to ward off or garnering If a warrant was clause.”29 obtained the “hostile acts” of another prevent particular surveillance, the question country he has the discretion to —then subsequent of “reasonableness” in crimi an end run around Title III prevent proceedings is nal to a reduced determi holding the surveillance invalid. Con- probable whether view, nation cause appears existed trary majority’s its If prior judicial issuance. approv explanation Report’s logical for the obtained, al was not subsequent foreign affairs that where statement “reasonablness” inquiry must expand Title III are involved internal a determination whether, include necessarily inde are not intended procedures pendent of the existence of probable applicable. appears Where it to be cause, justification adequate is shown for intent of such a surveillance was sole- having secured a evidence, warrant. This is gather prosecutorial then ly requirement. the constitutional procedures can hold Title III a court have been when should followed. Congress was unsure Certainly, III whether President Title passed Ironically, opinion own plurality’s matter, justify could, as a constitutional the weakness of up position. its points wiretaps “foreign affairs” warrantless argued strenuously that Having “Con It seems security” cases. or “domestic the procedures reme gress intended and Supreme. clear, the in view of equally to apply all of Title III to dies analysis and the lan in Keith Court’s guage which, under the Constitu surveillance tion, (e. Report the of Senate pursuant judi be initiated to must “foreign surveillances are “out affairs” warrant,” a “ca plurality the adds cial proposed chapter”), scope of the the side intend, it Congress did not now veat”: unwilling lay down Congress two at the heart provisions appears, requirements for such in statutory any e., (i. III sections 2516 and Title of Instead, in surveillances. formational given the case 2518(l)(b)(i)) be effect in Report, Congress left of the words the intelligence-gathering surveillances. of validity particu the of a of question the Effectively, plurality’s the “caveat” is an of the in the hands lar courts, the attempt to delete from statute those of “reasona determination for inapposite are most which sections judgment hoc based on an ad ble[ness] affairs” and “foreign domestic all of the facts consideration taking into surveillances, in justify order to its hold ease, the of individual circumstances rest of Ill’s provisions the Title ing that of Constitution the test the is but which only justification The applicable. adds, Report the Significantly, itself.”30 dissecting for the gives so plurality a judicial autho possibility “[t]he adherence to sections 2516 is that Act interception could or for the rization 2518(l)(b)(i) “unduly would tram under the been obtained not could information-gather of the conduct mel” would be one fac chapter proposed surveillances, provi- the other while ing judgment.”31 tor such 31. Ibid. Plurality Opinion at n.240. 28. Plurality Opinion, 32. U.S.App.D.C. 315, 92 S.Ct. at 2135. 407 U.S. at at-, 516 F.2d at 669. Sess., Cong., S.Rep.No.1097, 2d 90th at 94 Id., -, 516 F.2d at Admin.News, 1968, Cong. (1968) & U.S.Code 668-671. p. 2182. sions Act therefore be would not would “in violation of this “substantially affect” such chapter” comprehension surveillance.34 within of argument reject requires provision little damages It of Title III. The approach. Supreme Thus, even plurality’s if procedures of [Cite] Title observed in Keith the inapplicable close in III were to national Court provisions, security wiretapping, of the Act’s “de the remedies of terrelation lineating permissible interceptions Title III apply should to unconstitu criminal particular activity upon tional presidential exercises of careful power.37 specified ly conditions.”35 If of its Congress collapses virtually argument This legislate intended to had information-gathering with regard to seems clear in section weight. It own 2511(3) Congress use

surveillances in meant its (beyond III disclaiming intent, Title power” only such to identi- “constitutional 2511(3)), surely section it would preroga- source of President’s fy have left it to the courts guess fields affairs tive in the sections enforce. body Almost If in the Title security. certainly, provisions for such legislate any proce- Congress surveillances did III separated have been dures, requirement, from those for- other for ordinary for criminal wiretaps surveillances, and spe it is difficult eign affairs cially designated. Moreover, logic drawing sur- likely such to fathom Congress would not have limited it within ambit of the statute veillance to an alteration of the probable self purpose assessing sole dam- (For requirement. example, cause suggested by “simply legis- ages. Congress did not If Supreme surveillances, regard Court with late” Keith, the time and reporting require legislate period. it did not — might not sobe strict as ments those in 2518.) logical section The view piece second sec “evidence” intro 2511(3), supported by plurality duced language colloquy regard 2511(3) Court in Keith to section between Report Act, Hart, Holland, Senate is that Senators Con McClellan simply gress determined not floor. The Supreme on the Senate attempt Title III to tackle the discussion, Keith observed of that complex and hardly laying expect controversial task of “One could down proce clearer ex pression congressional dures informational as well as neutrality evi dentiary surveillances.36 [concerning] presi whatever point only two plurality can powers The dential surveillance in existed statutory language or where affecting instances legislative matters the might support posi- its history security.”38 The plurality on focuses a phrase in section the The first is by statement Hart, tion. Senator in which he “[njothing con- 2511(3)which states first affirms that no congressional at . . . shall chapter in this tempt tained was being made to define lim the power of the the constitutional limit the President’s powers. its of He then language, this the Based on always President.” adds that he has found those lim “extremely vague, asserts: its plurality especially in do threats, mestic as opposed to that Con- assume is reasonable [I]t threats from powers.” Specifi “unconstitu- prohibit gress intended cally: surveillance, which Executive tional” Id., U.S.App.D.C. -, 2519(l)(e) 2518(4)(c), 34. at (d), (b) 2518(3)(a), F.2d & ignored Judge also if 668-670. (See opinion Wright’s nrevail. view were at 2131. U.S.App.D.C. at-, McGowan, Judge my McGowan, agreeing assess- Judge at-.) F.2d position, points plurality’s court ment Plurality Opinion, 2518(l)(b)(i) are not sections out that at-, 516 F.2d at 662-664. only III which are total- provisions of Title of an information- ly inapposite in the context 38. 407 U.S. at 92 S.Ct. at 2132. 2518(l)(b)(iv), Sections surveillance. al case,* validity claim recall, recent Katz of their in the merits As I any defenses Supreme Justices of the defendants might some have.40 that the President has doubted Court the Constitu all under any power bugging tapping and CLAIM engage in II. THE CONSTITUTIONAL

tion to security cases without in national Foreign Exemption Affairs A. The —In- 2511(3) merely Section order. court and Limitations ner Distinctions President has such a if the says remains is whether issue which The way is in no its exercise power, then pri- of the JDL without the surveillance by III.39 title affected approval violated the Fourth or por- omitted Supreme Court The outset, At the it must be Amendment. Hart’s statement of Senator tion question that that cannot be clear made Keith, good in and with quotation its simple by a talismanic refer- answered that the clear Senator It seems reason. “foreign power affairs” ence sur- questions and the to Katz referred No matter how certain President. in requirement do- rounding the mandate in this or his constitutional example as an security cases mestic area, the President is never free other of the law in the “vagueness” complete disregard in protec- act 2511(3). Obvi- by section covered area guaranteed each individual section, if the Presi- ously, under Rights. If his foreign affairs au- Bill authority to order warrant- has the dent thority depart- affords security or wiretaps in domestic less exemption from the require- ment cases, procedures “foreign affairs” prior judicial approval, ment of will not be affected Title employs he ignore the President can consti- because follow, necessarily how- does not It III. safeguards performance tutional he does not have this au- ever, if duties; rather, because, it is on of his must be thority, all such surveillances balance, exigencies intelli- Title III accordance with conducted gathering outweigh the constitu- gence say Hart does not Senator procedures. this, placed prior judicial ap- value tional Report neither Senate proval. in Keith Supreme Court the Act proposition. supports engaged just comparative analytical approach sum, for the there is little basis Keith, found that the cost in procedures position plurality’s infringement on Fourth and terms apply “foreign to all affairs” III Title high values was too Amendment First security surveillances in domestic allowing a national sur justify judicial approval required. prior to be conducted without war veillance ap- of Title III do not procedures If in the instant case dis Appellees rant. can- remedies for their violation ply, Keith by noting decision tinguish ap- This does not leave the apply. great the Court that case took remedy. without a this case pellants to observe no evi pains part opinion “[TJhere [was] will If, next of this as the involvement, directly or in dence elaborate, wiretaps of JDL were foreign power.”41 directly, of a That the Fourth in violation Amendments judgment “require[d] no on the decision a appellants have direct cause of ac- the President’s surveillance scope damages under the Constitution. tion respect to the activities of with power a are entitled to remand to the They within or without this foreign powers, for an Court assessment of District question possi- Cong.Rec. do not reach the whether it is at 308. 39. 114 imply “good judicially a faith” defense ble Agents 40. See Bivens v. Six Unknown Named Plurality under the statute. Opinion, 170 Narcotics, Federal Bureau at-, 516 F.2d at 671-673 and 1972) (2d (on Cir. remand from the Su- Judge Opinion Bazelon. of Chief Court). preme 41. 407 U.S. at 92 S.Ct. at 3132. as a matter of law hold I would Since case, I Title III in this no violation there was case, other This on the a country.”42 waiver of unjusti such breadth is foreign a hand, does “involve” clearly “foreign If a affairs” exemption fied. judgment require exists, a on does power and is much encompass narrower — “foreign the President’s af ing foreign reach of on agents surveillances It authority. can be and those in fairs” criminal collaboration with therefore, foreign the wire granted, power. readily Government, in its distinguishable is from JDL attempt tap justify per surveillances of Keith, but the the individuals that of because of their sons involvement or con whether the situations remains with problem foreign power, nection distinguish fails to That constitutionally different. are between two types of in by the only be answered can quite question different, volvement though al balancing process the Su same kind of relations of the Unit used in Keith. drastically ed preme States affected in case. either The relationship of the Jew the Exec- view of If the Government’s League ish Defense with the Soviet Un authority placed wiretap utive’s bombs, brickbats, ion—characterized it would spectrum, hypothetical and verbal and written abuse—was ex terminal, where all oneAt parts. three wiretaps tremely antagonistic. To say it was non- ordinary cases criminal is an collaborative understatement. In be re- officials would grouped, would contrast, the involvement, for example, procedural to the strict adhere quired Abel43 of Colonel with Soviet Union middle III. In the Title requirements was that of a trusted and highly valued securi- in national lie surveillances would who agent served his native country by not sub- Although cases, Keith as in ty acquiring and transmitting the national III, these of Title to the strictures ject security secrets of this country to the satisfy basic still have to wiretaps would Soviets, espionage until his work was cut including requirements, constitutional by arrest short and incarceration. Like theAt judicial approval. prior that of Abel, Greenglass Colonel David and the rest all surveillanc- terminal other Rosenbergs,44although United States cit authori- foreign affairs related es izens, served the Soviet Union as espio nation protect the President ty of agents. nage All were collaborators acts, direct at- whether hostile a foreign power. retaliation, of other diplomatic tack That According JDL, to the Govern- activities of the countries. Abels,” foreign pow- of a “Colonel and various ment, the involvement U.S. citi- engaged in such in espionage balance zens for the constitutional tips er countries all have impact approval on our prior for- fashion wiretap. eign relations and kind of cannot be de- required That the of nied. President standard brief, appropri- the “reasonableness” departments ate Executive without a is met have a duty Amendment the Fourth power, and a derived from the Constitu- warrant. tion, to persons deal with such or groups protect rationale Government’s in order the nation Weighing exemp- acts of a “foreign foreign power affairs” hostile sweeping for a and to requirement against preserve to the warrant information is exemption such an would likewise irrefutable. But the inroads the issue in First the instant case is important Fourth and what make on means and pro- values, I must conclude cedures the first Amendment entitled to use Rosenberg, at 2132. 44. See United States Id. at S.Ct. F.2d denied, (2d Cir.), cert. 344 U.S. Abel, Cir., (1952). 43. See United States v. 97 L.Ed. 652 S.Ct. 485, aff’d, L.Ed.2d example, actively protested this discharging duty. its And on that in country’s involvement in the Vietnam great it makes a deal of issue difference war could subjected have been to a war- persons whether groups or “involved rantless wiretap under the exemption with a power” are acting as col- proposed by the Government. or laborators non-collaborators. The constitutional waiver approved by why Just this is so can be by seen the District Court in the instant case examining the rationales which have would cover all wiretaps connected with justify advanced to an exemption been the President’s conduct of our foreign requirement prior judicial relations with any country. Little re- approval “foreign affairs” surveil- required flection is recognize that' this lances. extremely is an broad exemption whose Foreign B. Rationales for the Affairs employment by the Executive might be Exemption Balancing of Con- —the subject to inordinate abuse. Powers, stitutional Responsibilities, The possibility that officials could Rights abuse their prerogative in attempting to vague act under so a concept pow as the variety A have been ad- rationales er protect “domestic security” was recognition of an one support vanced major factors in the Supreme require- the warrant exemption from Court’s reject decision to “foreign affairs” surveillances. Govern ment appeal ment’s for a “domestic importance Among security” them are the exemption in Keith. “History ly documents the tendency secrecy in the expertise, great abundant speed, this place whether to kind of Govern decision ment—however for a benevolent necessity free flow of wiretap; benign its motives—to view with suspicion which the upon data Presi- intelligence those who fervently most judgments dispute informed can base its dent affairs; policies.”45 “Related poten- and the conduct of area foreign relations” and “involving well-being a for for harm to tial eign power” are also intelligence extremely country opera- if an mallea entire ble criteria. Their utilization stymied as compromised stan tion is dards for permitting warrantless securing a warrant. As will surveil process lance activities pose would below, arguments only these discussed grave Fourth problems Amendment strong to sufficiently outweigh but well be also would threaten important when competing ap- constitutional values First Amendment values. intelligence operation aimed to an plied foreign agents or collaborators. “Foreign might easily affairs” be sub- range of do- The broader becomes security” for “national stituted purportedly covered activities mestic following quote from Keith: exemption, affairs” how- “foreign the ever, cases, moreover, National of deeper the inroads makes on convergence ten reflect a of First and priva- Amendment values of Fourth present values not Fourth Amendment freedom, over- political cy, “ordinary” Though crime. cases and seizures of searches sight duty of investigative the executive Virtually every political Government. cases, stronger in such so may be also has some interna- country in this action jeopardy to greater is there constitu Certainly repercussions. pro- all tional speech.46 tionally protected country’s foreign poli- against tests against the inter- protests well as which the de- cy, was not case Keith of another foreign policy country engaged protected had First nal fendants case), activity. They to be includ- (as in this Amendment conspiracy mention one Every group, destroy with a charged ed. Id. at 45. 407 U.S. at S.Ct. at 2135. government property. three factors in this case which instant case, protest some JDL alter the balance es- activity might constitutional con stitutionally protected and some was not. Keith. tablished (Not unexpectedly, the Soviet Union re enjoys first is that President The acted adversely both lawful and un greater autonomy in the field somewhat lawful demonstrations of JDL disaffec foreign affairs than in the exercise of tion with policy.) Soviet Notwithstand explained As was duties. his domestic ing illegality of the defendants’ ac II, beginning however, Part the certainty tions, Supreme Court observed in authority President’s Keith : “Given difficulty of defining ipso field cannot facto justify domestic [or, interest it is abrogation constitutionally protected submitted, “foreign interest], affairs” rights. individual danger of abuse in acting protect fea possible distinguishing second The that interest becomes apparent.”47 is that the determination whether ture sure, To the Court’s concern was cause exists for a probable surveillance price of lawful public dissent “[t]he greater requires expertise where subjection must not be a dread of to an are than when domestic involved affairs security power.”48 unchecked It question. is in That the reason however, appear, a request “foreign for a af ableness knowledge Court’s estimation wiretap something is so be fairs” far engage wiretap the Executive could judges the ken of federal as to yond judicial ping prior without approval sim them incompetent render make such a invoking ply by security” “domestic is at a propo determination best dubious would deter lawful as well as unlawful “If the threat is too subtle sition. reasoning applica dissent. The same is complex for our senior law enforcement ble in the instant case. Energetic pro convey significance its to a officers court, activity test often includes an element may question one whether there arguably which is unlawful. Public cause probable surveillance.”50 knowledge plena Executive has Moreover, the Government does not con

ry power wiretaps to authorize without judge that an evaluation test must scrutiny when the Government here, when, as there is an at be made suspects an group individual or is en prosecute someone who is tempt over might in unlawful gaged activity well judge If a is able to heard. make general vigorous exercise limit a wiretap evaluation after is con proper dissent to an administration’s conduct of ducted, certainly questionable why it is our affairs. judgment his less sound before it is Finally, judges fully installed. attempted to In Keith the Government the special expertise the Exec aware weight of Fourth and First counter the department possesses in utive this area. “do arguments Amendment decision, is error in a court’s it is there If exception with the same security” mestic to stem from excessive likely reliance instant of reasons advanced in the kinds expertise than rather too little re secrecy, expertise, and the speed, judgment. case— for the Executive’s spect any impediment to avoid need might The third factor which discharge of his distin- constitution President’s guish the result reached in Keith from duty.49 Court found al which should obtain here is the add- rationales of these of sufficient none danger to the ed justify welfare of the (or importance) country persuasiveness involvement of a foreign pow- re waiving minimal Fourth Amendment brings to a er criminal case. to be It is this quirements. appear There would 49. Id. at 92 S.Ct. 2125. Id. at 92 S.Ct. at 2135. at 2138. Id. Ibid. which speed vitally affecting necessitates factor great “cases the domestic se secrecy in determining whether argued none curity,” but a blanket au is necessary. However per- thority engage in warrantless surveil argument this might be suasive when touching in all cases upon lances the con the resources another foreign nation Moreover, are cov- affairs. duct al ertly through the medium very general though there language in directed— enemy agent or domestic collabora- cases about the some inherent authority tor—toward the overthrow of gather foreign the President to intelli it is government, not convincing when case in gence, object which the is the more generalized the threat “foreign warrantless of a affairs” sur one uncertain of a “deterioration in our has been veillance revealed involved an foreign Certainly relations.” the subver- agent country of another acting alien sive activities a purely domestic or- with a citizen collaboration of this count intent on ganization destroying govern- authority, This ry.52 while arguing present ment institutions a much strong- against extremely broad constitu secrecy er case for and speed of surveil- requested by waiver tional Govern protest than the lance activities of a case, in the instant ment naturally raises group adversely which affect the con- question whether the tion, a narrow exemp foreign duct of our relations. The Su- limited survéillances on those preme Court nevertheless was unable to working on behalf of a foreign govern find in Keith that the danger compro- against country, might ment and this mising or hindering a domestic intelli- constitutionally acceptable. operation gence was sufficiently great to C. Collaborators Non-Collaborators impinging justify on basic Fourth Foreign with a Power Amendment values eliminating the requirement. The Court in Keith constitutional viewed balance established in that between case the difference domestic and would for to control appear groups, eign instant the purpose case of judging well. whether a case was one involving domes foreign aspects

tic or of national securi question of Important support position degree ty, as of collab any “foreign between a group agents affairs” oration exemption foreign of a apply agencies power.53 would to all surveillances This dis reflects the primary to the conduct of tinction “related rela concern of Executive and the simply Judiciary, tions” is too broad is found in since concept special Presidential pre Executive claims of past constitutional in the field of rogatives in this area. When intelli privilege President gence gathering was power introduced, asserted the first Roosevelt to autho hamper the not to President’s ability warrantless surveillances on rize “nation grounds, safeguard country against this security” he al limited that au the sub activities of foreign agents versive thorization “communications per fifth columnists. The suspected constitutional sons subversive va activities lidity “foreign of a Government of affairs” exemption to surveillances on States, including suspected limited spies.”51 narrow especially dangerous Presidential class of Subsequent expanded claims criminals is n supported by the fact security” “national that it term include minimizes Butenko, 51. Memorandum from (3 President Roosevelt 52. United States v. 494 F.2d 593 Jackson, Attorney May 1940, denied, 1974), General cert. re Cir. Ivanov v. United produced in United States v. United States 419 U.S. 95 S.Ct. 42 L.Ed.2d Court, (6th District 669-70 Cir. aff’d, 1971), 92 S.Ct. (1972) (subsequent L.Ed.2d authorizations n.8, 407 U.S. at 309 repro Truman of Presidents duced). and Johnson also judge made that a with insuffi- point with First and Fourth Amend conflict probably grant experience cient values.54 ment application automatical- Executive’s up importance and rele- To sum protection any- is afforded what ly, then the distinction between collabo- vance formality at the sacrifice useless by one and non-collaborators to the issue rators security? Where “foreign speed of (or on) existence of limits of Executive’s involved, only but are because affairs” power to conduct electronic of non-collaborators the connection prior judicial ap- without surveillance foreign power, there should be a no with inordinately proval: greater difficulty in process balancing the in- First: judge the matter to a than in presenting terests, support recognition of an which criminal case. The instant usual require- from the warrant exemption example good a non-collabora- is case “foreign affairs” wiretaps, all ment for activity foreign which involves a tionist inroads such recogni- blanket nation, readily but nevertheless is com- would make on the constitutionally by judge. a prehensible rights groups and individu- protected no First Amendment There are 3. that, als, while there demonstrates dissuading legitimate problems an exemption where collab- a case of collaborators with a dissent political concerned, argument are orators they rarely since have as foreign power, when, case, as in this flat non-col- falls injection posi of their purpose their targets. are the laborators marketplace of ideas.”55 “the tion into importance of 1. The absolute secre- contrast, invariably almost non-collab speed, informality in cy, making the depend heavily on their First orators to conduct a decision surveillance reaches freedom order to propa in Amendment where its zenith collaborators are in- cause; their that freedom would gandize Usually operating stealth, volved. necessarily by be inhibited existence only be by great can detected power Executive to conduct of a broad operations The stealth. non-collabora- “foreign under a loose af surveillances (e. g., League), the Jewish Defense tors exemption. fairs” hand, likely are on the other to be noto- say This is not to that a rious. success- simple domestic/foreign The dis 4. wiretap does not need to be surrepti- ful e., Executive surveillance of tinction—i. tious; justify any but it is hard to more activity restricted domestic purely formality less secrecy or this situation prior judicial approval, requirement required to obtain ap- than where affairs no restriction but ordinary an proval wiretap, criminal easily subject too are concerned—is the whole world is aware when every important politi Almost abuse.56 target’s activities. surveillance country in this has some inter cal action Granting the difficulty repercussions. of finding a judge 2. powers constitutional background sufficient with intelligent to make an Executive’s affairs, his authority expertise decision on the question justifiably unrestricted seem justified surveillance is is ar- whether dealing with collaborators awith greater where when collaboration with guably not with non-collabora- foreign power, foreign power suspected. If the more, important equally, It is to make if not harmful to the clear nation’s the dis- foreign counterparts. Thus, drawn here their tinction is not welfare than between surveillanc- aliens, exemption hand, suggested on the would draw es of one no dis- and United citizens, agents. alien and States the other. tinction between citizen Aliens and citi- protected are zens alike the First and Viereck, exception, Spread- see S. G. For Amendments, Fourth least within the bor- ing of Hate Germs country. Colyer Skeffing- ders of this “foreign the recent use of affairs” Witness ton, (D.Mass.1920); parte F. 17 Ex Jack- Watergate justification for the break-in. as son, (D.Mont.1920). impor- 263 F. 110 More tant, agents foreign power domestic of a are Keith, security surveillances, as those involved in tors such instant case. Court declined to make subject procedures to the strict of Title judicial prece- Second: III, but which the Court held neverthe of an ex- the existence supporting dents subject are less constitutional re au- surveillance traordinary Executive quirements “prior judicial approval.” ambit the Presi- within thority Third, if the analysis above is accepted, power usually affairs” “foreign dent’s surveillances, such as that in the in context, terms, inor spoken case, primary purpose stant whose is the sabotage by alien espionage of our protection relations with another foreign country. aof agents domestic country. type This of “foreign affairs” ever, if been made rarely, has Reference might differ from a domes power against non- special using that tic surveillance in the kind of collaborators. showing cause probable required justi in privilege of claims 1. Executive fy nevertheless,, it, a wiretap;60 too, foreign wiretapping affairs of the area prior have approval. must upon impor the relied generally have Fourth, and finally, opposite at the end “persons monitoring suspected of tance spectrum the from Title III surveil the activities subversive lances, are surveillances directed at for States, the United in Government agents eign and collaborators. To my spies.”57 suspected cluding type this presents mind of surveillance upheld which have cases the 2. All the circumstance where the balance involved, exemption our best powers, constitutional responsibilities, foreign agents knowledge, either or U.S. rights may justify the and Executive in charged with collaboration. The citizens prior with dispensing judicial approval. opinion Keith, in Court’s when Supreme us; and neither That case not before eschewing ruling on the foreign affairs attempts plurality’s nor the opinion this security,” spoke of “national aspects in the Even if a question. “for to decide of “foreign the activities pow terms of limited to exemption, affairs” col eign agents.”58 their ers or foreign agents, and does laborators find in the same Supreme 3. The support, it has no applica constitutional difference between do the viewed prac ease warrantless surveillance tion foreign groups, pur for the mestic Executive here. ticed whether case involved of-judging pose Thus, particular on the facts of this foreign aspects of national domestic case, join plurality’s I in the determina- upon degree security, as based defendants were in tion viola- a group between collaboration tion of the Fourth Amendment when foreign powers.”59 “agencies they placed wiretaps phones on the obtaining prior judicial JDL without Spectrum Executive Elec- D. plurality approval. Had further tak- Authority tronic Surveillance logical position en the that the remedy brings me this constitutional analysis thus to a for damage violation was My spec- Constitution, electronic action under the I trum of have no composed quarrel of four substantive authority parts, as with opinion. Instead, however, compared tripar- with Government’s their chosen to draw all At one end are all wiretaps have surveillances tite model. cases, subject to require- in Fourth Amendment ordinary criminal which offi- involving ments—whether domestic require- adhere strict se- must cials foreign affairs, curity, ordinary III. Next are crimi- Title domestic ments of Smith, supra. F.Supp. United 60. See States v. See note (C.D.Cal.1971). 428-29 58. 407 U.S. at 92 S.Ct. 2125. n.8, S.Ct. Id. field. I readily join mestic regu- the ambit of a activity' conclu- nal latory —within sion that the geared entirely wiretaps which statute Jewish De- League were placed fense auditory pursuant searches evidence toward the President’s specifically prosecution power, affairs support I do not read the Recognizing majority crimes. opinion enumerated disagreeing position finding. of their finds anomaly —which legislative history support no least in the case At of collaborators or Court case law— III or Title agents foreign power, of a I believe the expunge determine to plurality interest requires that the Presi provisions scheme those regulatory engage dent be free to in his informa glaring are in most conflict with gathering functions without character of domestic informational obtaining burden of prior judicial ap surveillanc- security affairs proval. Butenko, United States v. reasons detailed in Part I of For the es. (3d Cir.), F.2d 593 cert. denied nom., sub strongly I dissent from this opinion, Ivanov v. plurality excursion legislative 42 L.Ed.2d 121 I con application to this case concomitant Judge cur Wilkey’s balancing of the statutory damages provision of interests the case of agents and col III. Title laborators, but as all opinions correctly note, that issue is presented not by the .MacKINNON, Judge (concur- I Circuit instant facts. would through not dicta dissenting part): and in a solution part suggest ring advance of the problem. join indicated I hereafter Except as case, Wilkey’s in this and opinion pure In the case of

Judge information gath that in his conclusion Title ering activities particularly directed non-col Crime Control and laborators, Omnibus recognize of the I III the imposi Act of 18 U.S.C. requirement Streets Safe tion of a prior judicial 2510-2520, apply to in- does not approval wiretaps may in §§ some in United States v. United situation. protect stant stances constitutional interests of Court, 407 92 District U.S. targets States of the surveillance. How (1972), stated 32 L.Ed.2d 752 ever, I have S.Ct. considerable difficulty in ap attempt to III “does probable Title plying cause requirements powers or delineate the of the define of the Fourth Amendment to such sur meet to domestic threats to veillances. The first President clause requiring (Id. at security” and that searches seizures not be “unrea 2139) the- “standards applied, can be S.Ct. sonable” but .and where evi of Title III were not procedures” crime is not sought and dence of I do not to the facts of that necessarily applicable know the rationale for applying the security case. If Title III does clause which domestic second state's that “no war presidential issue, to the exercise of apply upon rants shall but probable field, domestic . cause . . .” This powers traditionally has applicable is even less interpreted to require been fortiori a showing of power in the presidential probable cause to exercise believe that a crime with foreign relations our has been committed.1 area The various stat the President since admit- governments, utes and Rules which authorize courts to greater freedom of vested tedly is warrants issue for searches and seizures foreign affairs than in the do- incorporate this See, action standard. e. g., Taft said in Steele v. United L.Ed. 543. Justice S.Ct. “If the 1. As Chief facts and 498, 504-05, States, 267 U.S. circumstances before the officer are such as (1925): prudence a man of L.Ed. caution in believing offense had been commit- lay had case we have occasion to In a recent ted, it is sufficient.” probable cause for search. what down United v. Carroll 41(b), Congress certainly (c)2; F.2d at 657. did not Fed.R.Crim.P. 18 U.S.C. 2518(3).3 statute to be Obviously intend the dissected in this this criterion is § in Furthermore, applicable the majority spe- to situations manner. where no crime is declines “delineate being investigated cifically and the the exact only purpose must tap gather procedures the Executive follow in is to information rele to the conduct of foreign securing vant warrants” (Majority Op., affairs. at-, U.S.App.D.C. 658) 516 F.2d Saying that standard is merely ambiguous the area as it “probable cause” thus leaves defining without it. ignores history term found provision interpretation and its relegates ap Court encountered When for wiretaps plicants judges con same dilemma in United States this

sidering applications weighing Court, supra, District States amorphous concept with no definite stan security wiretaps, it of domestic the field dards. by Congress to enact responded urging governing approval ap- standards recognizes Judge Wright the incom- for informational surveillance. plications he would the standard im- pleteness Al- S.Ct. 2125. states that when he courts pose yet though Congress has not acted on probable “fashion” a standard of could matter, approach the Court’s is still Op., Majority cause. judi- If standards valid. at-, appar- at 624—625. He created, that cially properly more done by standard would fashion this ently which Supreme Court can formu- striking provisions out of Title III certain standards than nationwide late he relating probable finds cause vary whose standards would courts lower reaching his desired re- inconvenient jurisdiction. jurisdiction replacing balancing them with a sult majority from the dissent I therefore judges might “possible factor[s] join Judge Wilkey’s I opinion, determining a pro- whether consider subject the differences ex- opinion be Ma- reasonable.” search posed above. pressed at-, Op., 170 jority modified, authorizing approving intercep- 41(b) (c) provide: or Fed.R.Crim.P. or of wire oral communications within (b) Issuance. A warrant for Grounds jurisdiction the territorial the court for this rule to search issued under be n judge sitting, judge is if the deter- any property seize the facts the basis of submitted mines on (1) in violation of the Stolen or embezzled applicant that— States; or laws probable (a) is cause for there belief that (2) Designed for use or which or intended committing, committed, is has an individual used as the means of commit- or has been is particular commit offense or is about offense; ting or a criminal chapter; section 2516 enumerated Possessed, controlled, designed (3) or or probable (b) cause for is belief that there has use or which is or been for intended particular concerning communications 18, U.S.C., § Title in violation used through be will obtained such inter- offense (c) A and Contents. Issuance ception; on affidavit sworn before issue shall investigative procedures (c) normal establishing judge commissioner or reasonably ap- failed or and have been tried issuing grounds for the warrant. If the unlikely pear succeed if be tried or to satisfied judge or commissioner is dangerous; be too application exist or that grounds (d) probable there cause belief that probable cause to believe there which, place where, or facilities identifying exist, a warrant he issue shall the wire or oral communications are to be naming describing per- or property and used, intercepted being or are about place . . . searched. or son used, in connection with the commission 2518(3) provides: § U.S.C. offense, to, or are leased listed in such judge may application Upon (3) such of, commonly person. used name order, requested parte as an ex enter notes & 30-32, at 609-610 ropean Affairs Hildebrandt. JA at 34- surveil- of such potential abuse Mitchell); strate (deposition F.Supp. of Mr. circumventing war- means as a lance There is no evidence that the State 938-939. Department investiga- requirement criminal in normal Security rant the National Council infra, also actually requested wiretap, tions. installation of a at---,---, 516 F.2d at accepting Mr. Mitchell’s state Even however. 648-649. rely imparted did that he ments by information sources, also be noted It should that the acts which we nevertheless note the those

Notes

notes at-& during be in New York the United Nations 143, 144. & notes 644—645 at ceremonies, commemorative which would af- opportunity ford an for JDL demonstrations violence. and (memorandum Exhibit M-l 25. Plaintiffs’ Mitchell, Edgar Sept. J. Hoover to John purportedly provide The surveillance was to 1970). concerning information advance JDL activities headquarters, on JDL wiretap otherwise for nished unobtainable informa period for a last approved tion, was well in advance public which state solely on fact JDL, based was by the days,26 thereby ments allowing of 90 for demonstrations, many of which adequate JDL countermeasures to be taken violence,” target were by police by appropriate “marked and were in this installations Soviet Apparently despite any forces.”29 ed intel subject of official were country ligence gathered, information so JDL ac again the sur Once protests.27 tivities continued in full during force Soviet ad provide “expected surveillance; was period indeed, of the veillance of activities knowledge generate surveillance failed vance informa diplo against anti-Jewish prevented directed tion that would have [JDL] create establishments, could which bombing Amtorg on April 22, matic offices embarrass international was reportedly which situations executed This JDL members.38 After 208 days, the United States.”28 ment 90-day another installation wiretap finally for was extended terminat was wiretap ed, unsubstantiat During on the FBI’s on June 1971.31 this peri based period, od, “the authorized surveil neither Mr. Mitchell nor other ed assertion offi reveal details of Attorney continued to cials of the General’s office has re lance * * * to continue JDL viewed information by the obtained from or plans harassment Soviet for necessity taps,32 program Mr. its ** *. In each in officials Mitchell was unaware taps bloc con Arab fur- [wiretap] installation than tinued for more a month after stance discontinued, policy Department coincided with motions Justice 26. Routine to au- dis- for cases, security wiretap closure made States supra. the criminal thorize national installations periods. Testimony 90-day Joffe, Bieber and v. United States for Clarence Director, FBI, Kelley, Concerning See JA 62-64. Motions M. Bill Senate made disclosure were ing on “Surveillance June and a Practices and hear- Proce- July 1973,” wiretaps was held 6. The dures Act Before Subcommittee July terminated on either June Laws 30 or 3. See on Criminal Procedures and Consti- supra. Rights, note 10 (Oct. 1974) (Justice at 12 tutional release). Department approval And once such there, time, Q any during Was appears given, it there is no reconsideration period any installation check necessity during the surveillance your whether, someone at instruction to see period. Although Mr. Mitchell that that he had from the asserted fact, had in overheard which curity there been conversations discussed information obtained produced such [national se- surveillance, spe- he could recall no intelligence] information advance? cific information was communicated to * * * my A [T]o best of recollec- Moreover, him, see JA 40-42. he admitted tion, provided by been we had the [FBI]that logs had never reviewed the that he conducting the surveillance with infor- expressed his belief that nei-

notes 651-653. F.2d at 664-667 & must turn on the suit pecu President’s Attorneys General approve investiga powers liar field of foreign af “to secure tions information listening However, precedents fairs. of Exec devices directed to the conversation or practice decisions other communications persons suspect utive merely substantiate existence ed of subversive activities powers legitimate those the authori Government the United States.”53 ty of the President to obtain However, information practice has never re necessary protect the national security

render sensitive to the notes But see United Brown, problems E.D.La., FBI is confronted with in its in- States v. F.Supp. affirmed, Cir., (1970), gathering capacity. telligence (1973) F.2d determination of reasona proper make a highly deferential likely to Ex wiretap has bleness after been in concerning determination need ecutive’s stalled, and since the reasonableness of a particularly wiretap, install a where a

notes 516 F.2d at 656-659. involved versations with presented naively equates all foreign we are threats with fact the Presi- scope dangers another Pearl Harbor.151 question but powers, substantive dent’s Domestic information, which presi- whether question procedural must, Keith, under pursuant obtained must run dentially directed procedure, may be no less before or review judicial gauntlet important than foreign security informa re- factors Since installation. its after tion, and the potential harm judi may arise competence lating cial error no devastating. less For ex they should at time, we believe either ample, if grounds there were to believe judicial re- standard affect most that a massive conspiracy among existed timing. view, its military officers in this country to over

notes at 620—628 & notes 18 L.Ed.2d 288 practice, omitted). supra, similarly see presidential We conclude that Execu- &36 at---, reasonably U.S.App.D.C. officials they F.2d tive who believed had congressional legislation, powers Constitution, see certain under they supra, installation thus who extant believe had to con- wiretaps. also note 276 infra. form a statute which does not See cover such exist, powers pre- when do should not be supra, demonstrating cluded the existence and at---, F.2d at 661-669. the reasonableness of their belief.

notes al presidential powers or the supra, believe that com- we cannot meaning expressly of Title III. Thus we do not expense pensation to be accorded at the propriety indicate views on the of the deci- denying enforcement officials their tra- law Kleindienst, sion in Sinclair v. D.D.C. Civil Ac- faith, good particularly defense ditional since possible (April 1975) (finding “good tion No. 610-73 discourage the exercise of this would brought by faith” defense in civil action ant in Keith defend- Congress powers did not seek case) consistency or the of that to disturb. principles with the decision we have elucidated opinion. in this

Case Details

Case Name: Bertram Zweibon v. John N. Mitchell, Individually and as Attorney General of the United States of America

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 24, 1975

Citation: 516 F.2d 594

Docket Number: 73-1847

Court Abbreviation: D.C. Cir.