United States v. John William Butenko and Igor A. Ivanov. Appeal of Igor A. Ivanov

support cient to Chief-Judge, the averments in the in- SEITZ, and VAN Before ADAMS, hence, and, dictments ALDISERT, their DUSEN, GIB- convictions agreed HUNTER, could not ROSENN, stand. This Court BONS, WEIS Judges. respect Ivanov’s contention with GARTH, Circuit violating his conviction for but judgment otherwise affirmed the THE COURT OF OPINION district court.2 Judge. ADAMS, Circuit sought Ivanov and then Butenko cer- Supreme tiorari perplexing dilemmas Court. Among While more petitions society govern- pending, that their by a democractic faced voluntarily ment overheard, institutional revealed and it had securing its territorial pre- time, means of electronic sur- integrity, the same at while veillance, essen- conversations of serving of liberties Ivanov and the core intact Supreme thereupon Butenko. The Court an association as to existence tial granted certiorari, questions truly limited to individuals. free standing government’s obliga- and the appeal, which disposition of this The tion to wiretaps disclose records of relationship requires consider us to illegal. addition, determined to be government’s need federal between appeals consolidated of Ivanov the Court concerning information to accumulate involving and Butenko with another case the United within activities foreign argument, similar issues.3 After oral right of people’s powers and the Supreme held records of Court and privacy in statute as embodied illegal surveillance must be disclosed Amendment, represents, in ef- Fourth Butenko, Ivanov and and remanded the judiciary’s fect, part federal at- of the cases to the for district court proper tempt between balance to strike easily hearing, compelling, findings, A albeit and conclusions these two reconciled, (1) on the of whether with interests. respect any petitioner there was present appeal recent is the most The electronic surveillance which violated protract- provocative episode in this rights, his Fourth Amendment litigation.1 concluded At a trial ed there if was such surveillance Igor appellant Iva- A. December respect petitioner, with on the nov, national, Buten- and John Soviet nature relevance to his conviction ko, birth, were convict- an American conversation have provisions conspiring ed to violate the through been overheard surv 794(a) (c) and U. of 18 U.S.C. § eillance.4 essence, statutes, 951. These S.C. § remand, prohibit On the district court communica- the transmission or presented requests government with material for disclosure of tion to a relating interceptions. the records of the national two sets of information acting person defense, Pursuant Court's direc- and forbid a tive, foreign agent prior court, conducting notifica- the district after as a absent concurring 3. Alderman v. and dis- Aldisert’s See exposition opinion senting S.Ct. L.Ed.2d herein a fuller for background of this case. of the factual 4. Id. at (3d 1967). 2. 384 F.2d 554 for disclosure to Iva- the district court hearing, information found of the interceptions, nov and his counsel of records in the first set of tained interceptions government, an illegal second set of and for by the conceded to be hearing evidentiary determine wheth- of Iva- the convictions had not tainted they examining er tainted his conviction. 6After nov or Butenko.5 interceptions set of records of a second government petitioned the Court held that court the district camera, rehearing portion in banc for a of that producing surveillance electronic panel’s ordering decision disclo- nor did violate these records dealing hearing evidentiary sure Amendment.8 the Fourth contravene with the second set surveillances. court, therefore, declined The district petition rehearing, Ivanov filed a government to disclose to Iva- order the government’s conditioned on the obtain- his counsel the records of nov and ing rehearing, contending panel that the interceptions to conduct second set of concluding gov- was incorrect in respect proceedings there- further produced ernment had the records all Accordingly, di- district to.7 previously relating ordered disclosed judgments rected that of conviction new interceptions. the first set of full be entered. granted government’s petition challenged judgment rehearing, but denied Ivanov new that of Ivanov. him. He asserted of conviction Thus, principal question before the that the loss or destruction some Court in banc is whether sufficient dealing first set of the records with the that the records second of in- set government interceptions prevented the terceptions be disclosed to the district sustaining demon- burden of camera, govern- or whether the strating his conviction was not ment must also disclose Ivanov and interceptions and tainted these his counsel the records of of this set deprived exculpatory him evi- have of terceptions. Additionally, dence. Ivanov contended failing that the district court erred in I. THE RE- DISCLOSURE require disclosure to him and his counsel QUIREMENT of inter- of the records of the second set ceptions, States,8 he In Alderman claimed violated 605 v. United § or, Supreme government of the Communications Act of Court held that the permissi- if found them to be must disclose to Ivanov and the other under Amend- ble his Fourth defendants all records illegal of surveil- rights. lances, prior ment without a in camera review judge, purpose the trial for the de- of panel Court, opinion A of in an termining if the records contain materi- 1973, unanimously de- filed June government’s al relevant case. clined to reverse the district court’s Supreme Court concluded once finding of no as to the first taint set of interceptions are ascertained to be However, interceptions. panel illegal, determining “the task [of taint] vote, cluded, by a 2-1 second set complex, margin is too and the error of interceptions parame- fell within the great, rely wholly too in cam- that, therefore, ters of 605 and the di- judgment of the trial court to identi- era vulgence contents of that set of fy might those records which have con- taps, purpose trial, ille- for the tributed Government’s case.”9 gal. Consquently, panel remanded 8. 394 L.Ed.2d 176 F.Supp. (D.N.J.1972). 5. 342 F.Supp. (D.N.J.1970). 6. 318 9. Id. at government appears 7. The to have disclosed all records of wire- counsel Butenko’s Id. tapped involving conversations Butenko. at 68 n. Supreme illegal, must, Court made not were we accordance Taglianetti clear in v. United States10 with the instructions of the necessity Court, disclosure, judge’s cases evaluate the trial exercise involving illegal refusing surveillance, de of discretion in disclosure. pended upon the likelihood that accurate We shall three address these issues se- particular determinations factual riatim. legal dispute or issues were otherwise “Nothing [Alderman, unobtainable. II. SECTION 605 OF THE COMMU- Ivanov, and . . re . Butenko] ACT NICATIONS OF DOES quires adversary proceeding and full NOT PROHIBIT THE INTER- every disclosure resolution issue for an electronic surveillance.” CEPTION AND DIVULGENCE raised OF THE CONTENTS OF ELEC- (Emphasis added) Apart from ascer TRONIC IN SURVEILLANCE taining whether evidence derived from THE FIELD FOREIGN AFFAIRS illegal conviction, tainted a surveillances MADE PURSUANT TO EXECU- judge’s it remains within the trial dis TIVE ORDER. require require or not to cretion dis Section 605 of the Communications closure of to fa records surveillances provides part Act person in relevant that “no questions cilitate resolution of surround being authorized the send- ing electronic surveillance.12 intercept any er shall communication Thus, require if we disclosure divulge publish existence, records of second inter- set contents, substance, purport, effect, or (1) ceptions, we must conclude either meaning intercepted of such communica- produc- that the surveillances electronic any person.”14 tion to illegal such records prompted This section considerable judge the trial abused his discretion discussion as electronic surveillance be- refusing disclosure. sophisticated widely came a more dealing investigation the former considera- used device for assessing gov- legality activity. criminal Much of the clamor tions— regard to the ernment’s activities with scope for reform centered around the group surveillances, given we must second by to the section the Nardone prohibits the first whether decide 605 cases.15 § Petitioners cases those issue. If we should smuggling surveillances at were tried and convicted of prohibitions of do decide that the 605 objection, alcohol. § Over their federal surveillances, agents we must permitted testify not these cover were to to proceed petitioners’ then to determine whether Iva- telephone the substance of rights nov’s Fourth Amendment have wiretapped conversations that were transgressed.13 Lastly, by if we been overheard the witnesses. In Nardone I, Supreme this of surveillances should hold that set the that, Court held under § 1099, 316, accept any 22 L.Ed.2d 302 and, 10. 394 89 S.Ct. instead, such concession (1969) curiam). (per ordered the district court on remand to con legality sider the of these 317, 11. Id. at 1100. at 89 S.Ct. surveillances. States, Alderman v. United Court, Term, Note, Supreme 12. 1968 83 165, 186, 961, 394 U.S. 89 S.Ct. 22 L.Ed.2d 60, (1969). Harv.L.Rev. 175 176 Butenko, See United States v. F.Supp. 66, 318 (D.N.J.1970). 69 contends that the Solicitor General Ivanov argument the at oral before Su- conceded 14. 47 § U.S.C. preme second in Alderman that the Court interceptions were unconstitutional. States, set of 15. Nardone v. 379, United 302 U.S. States, 394 U.S. See Giordano United (1937) 58 S.Ct. 82 L.Ed. [Nardone ; n. L.Ed.2d 297 313-314 89 S.Ct. I] Nardone v. (Stewart, X, concurring). Assuming ar- 84 L.Ed. 307 [Nardone guendo regard, Ivanov is correct this that II.] Supreme appears it that the refused “ comprehends prior judi- person’ federal electronic surveillance with ‘no agents, contend, as cial authorization.18 To and the bar on communication testimony Judge ‘any does, person’ efforts Aldisert these bars message.” intercepted by Attorneys General, On an various constitut- tent of re-trial, prosecution attempted proscribed to ed a concession that § present gathered result of evidence as a introduction into evidence of material testimony illegal taps instead of as seized as a of such surveillance result actual contents of the overheard not Attor- does seem realistic.19 The II, Court, neys advocating legis- in Nardone conversations. The General new taps, narrowing potential made clear that “fruits” lation ambit intercepted and, suggesting context, materials as well as the themselves, § might enough were inadmissible. be broad § presented reach situations like that response debilitat- In to the ostensible case, represented sound no doubt investigatory ing activ- federal threat to strategy. addition, the' interpretation presented ities Court, cases, dealing in the Nardone cases, placed the Nardone on § with the warrantless electronic surveill- adopted Department of Justice suspected dur- ance ing domestic criminals interception of position “that the mere investigations by routine federal prohib- telephone communications agents. case, present In the we are faced government, ited law.” The federal significantly with the different situation wiretap therefore, after continued of warrantless electronic surveillance though aware Nardone cases even pursuant presidential directive in the cases, at when the surveil- those least foreign intelligence sensitive area of during course lances were conducted gathering. It, therefore, formation investigation criminal of domestic regard appropriate would not seem activity, precluded introduction controlling Only those cases as here. into evi- the records or fruits thereof appeals one court of has been faced with Department Meanwhile, dence. circumstances similar to those here and lifting legislation pressed Justice evidentiary obliquely, with the issue dealt if limitations erected all.20 The continu- Executive Branch’s Nardone cas- foundation of 605 wiretap assertion ground that did on the es. It so obvious per se and the conclusion that the use of ability electronic surveillance to use intercepted as material evidence was convic- evidence in criminal to secure prohibited by and, thus, more ef- tions would make surveillance provision had an incidental effect weapon The De- crime. fective evidence, not, unlike a rule of does finally partment’s success- efforts were urges, inexorably Aldisert lead to ful the enactment of the Omnibus proposition statutory pro- the that the ofAct and Safe Streets divulgence Crime Control scription against represented any 1968, specifically evidentiary legislative authorizes rule.22 The 381, Kennedy Attorney 16. at 276. late Robert the Gen- eral. Rogers, Tapping, 17. for Wire 63 Case p. 20. See 605 infra. (1954) ; Brownell, Yale Public L.J. 793 Security Tapping, L.Q. and Wire 39 Cornell See, e.g., Sablowsky States, 21. v. United (1954). 197-98 (3d 1938). F.2d 183 Cir. Developments 22. in the Law —The Na Cf. 18. 18 U.S.C. 2510-2520. §§ Security Liberties, Interest tional Civil period (1972). During 19. the 85 Harv.L.Rev. But see covered the law re- Sablowsky Judge States, view articles referred Plusert’s v. United 101 F.2d to dissent, (3 Judge Biggs 1938) field electronic surveillances the of where stated clearly prior that affairs were made without “the Nardone Case holds that Indeed, case, warrants. in the instant the Section 605 creates rule of evidence. during surveillances were made the time the any history relating sarily to is bereft of mean that the surveillance § suggestion divulgence to of intended such does not run afoul proscriptions rule fashion a of evidence. On the of 605.24 § § language general- trary, seems of statute are directed to surveillances way any divulgence, by separat- of ly, conjunction, “and,” to reach and the otherwise, “divulgence,” ing “interception” into introduction evidence by way sepa- of wire- of information obtained does not seem intended to invite compromise privacy analysis. absolutely taps that would no There rate Congress contemplated over- of whose are those conversations indication Furthermore, interceptions the fact heard. un- situations where divulgences. accompanied by 605 have been restrictions contained § through exclusion of evi- enforced However, conclusion that § ob- should not dence at criminal trial divulgences 605 extends to to all scure the broader aim the statute— person surveillances within discouragement interception provision’s does ambit not exhaust our of communications.23 inquiry into the lawfulness wire taps in the case at hand. must We still view, apparent Thus, in our determine whether 605 reaches the § Gibbons, today ly Judge dis who that of type producing surveillances grounds, 605 would sents § judge records the district divulgence prohibit of inter appear to refused to order disclosed to Ivanov and by elec cepted obtained communications Specifically, his counsel. deemed are tronic surveillances left unanswered whether is to provision. parameters of the within be construed to restrict the President’s divulgence restricting any authority gather foreign intelligence Moreover, Branch, as of the Executive information and members use such information to neces- suggests, securing does assist Aldisert criminal convictions.25 brought filling If, example, suit were a civil his 23. law enforcement duties would be conversation, against proscribed. participant illegally persons a conversa overheard who passage 25. purpose tion, deter With the statute —to the Omnibus Crime ap- Control and some Safe Act furthered Streets be surveillance—would pears disclosure, that the disclo limitations on the Presi- extent such at least to the authority engage necessary dent’s forms establish the claimed some sure is interception. electronic surveillance Bivens v. Un those set forth in Six Cf. unlawful provides FBI, 2511(3) Agents Constitution. Section known Named follows: 29 L.Ed.2d Nothing chapter contained in this or in contended, “any person” might if It section 605 of the Communications Act of (48 language 1103; liber- 605) were construed of the statute Stat. 47 U.S.C. shall solely divulgence ally, Ex- within that a limit the constitutional of the Pres- Branch would not violate § ecutive ident to take such measures as he deems necessary protect seem 605 would This construction the Nation impermissi- permissible potential from the divide the actual or attack or other hostile intercept- foreign power, ble channels of communication acts of a to obtain susceptible along intelligence ex- lines not ed material information deemed essential governmental planation security in terms of effective of the United or to activity potentially response protect unlawful security national information implicated privacy against foreign intelligence interests terms activities. Nor interpretation, by anything this statute. Under chapter the shall contained in this be example, Attorney General could the power deemed to limit the constitutional intercepted openly transmit the contents of of the President to take such measures as through labyrinthine messages necessary protect federal the he deems to the United bureaucracy sub- with the attendant risk of the overthrow of the Gov- by privacy unfettered stantial invasion of means, ernment force or other unlawful hortatory against any a even effects of while present § the other clear and danger to same material discreet revelation of the to the structure or existence of ful- aid of a state to the latter officer any Government. of contents any argu- indicate, that it action that Keeping in that 605 embod mind § ably hamper engage would as we have ies limitation on the —since begin previously generally, concluded 605 intended to our is § we surveillance prohibit generally remaining question surveillances analysis un —the performance of his proposition that effective President’s der statute with foreign charged affairs field would the duties duties with President is questions. of the have raised constitutional to act as Commander-in-Chief time, any intimate, at We do not this Forces26 and administer Armed affairs,27 proper foreign powers resolu- that view whatsoever as nation’s possible tion of the clash of the constitu- in subse treatment will receive fuller powers opinion.28 quent portions ful tional of President Con- this To of gress. merely Instead, responsibilities, we note that the fill the President these legislative judgment. of absence consideration informed exercise an must Congress suggest affecting that the issue does may the United States’ Decisions sovereign relationships not have intended to reach states other § present presented likely our national situation are more to advance apprised case. In the indication if absence interests the President legislators possi- capabilities possible intentions, considered foreign Certainly effect of affairs responses ble § countries. other lightly field, acquiring not we should ascribe information of one means Congress through an intent 605 should surveil sort electronic § may reach electronic surveillance conducted And surveillance lance. electronic impeding competent President in furtherance his well tool responsibilities. This affairs information from the flow sensitive important would seem be far too States to nations. United justify unsupported subject resort to enacting Congress 605, the did § assumptions. possible bear- address statute’s not Attorney has certi General du- on the constitutional President’s fied, deny, and the dis Ivanov does ad- Commander-in-Chief and ties as as found, surveil trict af- ministrator the nation’s conducted here “were lances issue reports fairs. The suggest House Senate solely purpose for the maintained purpose of the Com- foreign intelligence gathering in a commis- munications Act was to create 30 Therefore, 605 does formation.” regulatory power § sion with over all forms themselves, them, not render communications, of electrical whether disclosure, accompanied by subsequent telephone, telegraph, cable or radio.29 unlawful. appears There to have been little Congress no all discussion at re- Although subsequent decisions garding Indeed, 605. had Coplon § that 605 hold United States v. explored question, no powers doubt the President’s does limit recognized, would have foreign intelligence Gib- gather infor- may bons’ extensive discussion well Coplon mation,32 we aware that intercepted by wire or oral communication pp. 611, 612, 28. See 615 infra. authority of the President in the exercise Sen.Rep.No.781, Cong., 29. 2d 73d See Sess. powers foregoing be received (1934), H.R.No.1850, Cong., 2d Sess. 73d hearing in evidence in trial or other jjroceeding interception where such reasonable, F.Supp. 66, and shall 30. not be other- 70-73. except wise used or disclosed as is neces- (2d 1950). 31. 185 F.2d 629 Cir. sary implement power. (5th Clay, 32. F.2d 165 United States 26. II U.S.Const. Art. 1970), grounds, rev’d on other 400 U.S. Curtiss-Wright (1971) ; Export United States 91 S.Ct. 27 L.Ed.2d 438 Corp., 304, 319-322, Hoffman, F.Supp. United States v. . (1936) (D.D.C.1971) ; Dellinger, 81 L.Ed. 255 States v. 602

may position read to undercut to which use material so obtained be urged may put, necessary in it here as well as the other cases be to de- becomes Coplon. not, pro- subsequent We do how- termine whether the surveillances high ducing despite regard ever, our for the the second invaded set of records Judge give Hand, rights. to that Ivanov’s Fourth If late Learned Amendment reading suggested by the conclusive surveillances did violate case the Ivanov’s There, rights, did not Gibbons. the court constitutional then disclosure wiretaps hearing suppression in whether consider detail records gathering foreign may purpose required be under the mandate telligence fell information within Court.34 reading ambit 605. A close § Applicability 1. The the Fourth Coplon ques- briefs indicates that Amendment to Electronic Surveill- Instead, tion was raised. ances Conducted Pursuant merely that assumed surveillance Foreign Pow- President’s Affairs illegal together un- and disclosure ers. any rea- der 605.33 In the absence of expansive language soning undergirding assumption, United we Curtiss-Wright Export States v. Cor- it is do not consider entitled 35 poration provides support great precedential decline to effect and contention President adopt is autho- here. rized to act unencumbered the Fourth judi- requirements prior Amendment FOURTH AMEND- III. IVANOV’S approval probable cial when cause IN- NOT RIGHTS WERE MENT dealing security he is with national FRINGED. matters.36 The ramifications of Cur- 605 of our conclusion tiss-Wright, however, Because remain somewhat pro- enigmatic Act neither Communications regard. in this To contend gathering for- customary the President hibits Fourth Amendment anal- intelligence eign ysis nor limits information is to be abandoned whenever (Mem.Op.N.D.Ill. specifically Feb. No. 180 Crim. 60 CR those enumerated in the Consti- grounds, 2, 1970), tution, implied powers rev’d 472 F.2d 340 on other and such as are nec- (7th ; Butenko, 1972) essary proper v. carry States Cir. United into effect F.Supp. (D.N.J.1970) (the present powers 318 66 categorically enumerated is true court) ; respect v. case in the district United States our internal affairs. Brown, F.Supp. (1970), 531 rev’d on 317 (5th grounds, 456 F.2d 1112 only, shown, “Not as we have is the feder- 1972) Stone, F.Supp. ; v. United States power al origin over external affairs in Compare (D.D.C.1969). United States v. essential character different from that over F.Supp. (D.C.Cal.1971) (dis Smith, affairs, participation internal but ex- tinguishing situation) ; domestic United power significantly ercise of the limited. (E.D. Sinclair, F.Supp. States Mich.1971) realm, In this vast external with im- (same) nom., sub aff’d portant, complicated, delicate and manifold Court, United States District problems, the President alone has the S.Ct. 32 L.Ed.2d 752 speak representative listen aas (1972). nation. 33. Id. F.2d at 636. pp. supra. 34. See 598-599 “[H]e, Congress, oppor- has the better tunity knowing pre- the conditions which 35. 299 U.S. L.Ed. 255 foreign countries, especially vail Curtiss-Wright The Court held this true in time of He war. confi- his Congress’ delegation the Presi- dential sources of information. He has his authority prohibit dent of weapons the sale of agents diplomatic, in the form of consular engaged to certain countries in hos- Secrecy respect and other officials. tilities each other was not unconstitu- gathered by highly information necessary, them tional. premature and the disclosure of it productive 36. “The broad statement the federal of harmful results.” Id. at 315- government powers except can exercise no at 219.

603 particular ty, nothing there would in seem be asserts President language jus the con- the tify completely removing the is incident to Constitution search and seizure foreign ar- activities is the Fourth duct of guably uncongenial affairs requirements reasoned view Amendment’s for with a the eign among and, concurrently, relationship the relevant affairs field im of the posing requirements provisions thrust those all and the constitutional Supreme decision United situations. Court District Court.37 States v. United States Court, In United States District the position here. no We take such forego Supreme Court tradi- refused analysis tional de- Fourth Amendment in his constitu President spite government’s that a the claim war- designated tionally Execu Chief role as rantless surveillance of a domestic or- ganization charged see duty the tive is with by the believed Executive are the that the laws of United States security represent a threat to national obeyed. it incon Yet is enforced overstep did not the bounds of the through President, the trovertible that implic- Fourth Amendment. The Court ignore subordinates, ad the his cannot itly rejected ex- the contention monitions of the Fourth Amendment istence of the Executive’s belief that na- activity investigating un criminal when security tional was involved somehow foreign Thus, evi affairs. related to requirements rendered the Fourth investigation of do seized in dence inoperative. Amendment It went on to out crimes as a result of actions mestic government hold secure a must the Amendment side the bounds conducting type warrant before in a criminal would not be admissible surveillances at therein.41 issue prosecution.39 authori The President’s ty foreign similarly is affairs to conduct conclude, Judge Thus, we as Gib implied, part, from the lan at least does, that the Fourth Amendment bons guage contained Article II where, applicable here, also is as con Constitution.40 Constitution acting pursuant his authorizing President for express provision no tains though eign even affairs duties ob surveillance, to conduct President ject of is not a the surveillance domestic appear power that such but it would organization. political Our differences duty similarly implied to con from his Judge opinion pri with center Gibbons’ Al duct affairs. the nation’s marily judicial necessity prior on the though direct threats to existence under the circumstances of authorization governmental institutions or to territori this gravi case. integrity al immeasurable Lofgren grounds. on historical Professor 37. 32 L.Ed.2d S.Ct. yet (1972). has not also contends that Curtiss-Wright Court embodying phi- read II, 38. 1.§ Art. U.S.Const. losophy espoused apparently Justice Lofgren, United Sutherland. See postulated hypothetical 39. The Corporation: Curtiss-Wright Export An Gibbons, infra, may p. fall see well Reassessment, 83 Yale Historical L.J. within the ambit of United States Unit (1973). Court, ed States District L.Ed.2d See S.Ct. Court, 41. United States District Su- p. 608 infra. preme specifically stated that case Although, present questions relating 40. seems did not Justice Suther- for- land, eign powers writer Court’s affairs the Executive: “Fur- opinion Curtiss-Wright, agree ther, requires judgment did not the instant case no power gov- scope affairs federal on of the President’s surveillance respect ernment was founded constitutional to the activities of for- grant, position eign powers country.” re- Justice Sutherland’s within without cently challenged by Lofgren been Professor 407 U.S. at not se- Fourth Here search warrant was The Provisions prior cured to the surveillances. We Amendment. whether therefore, determine must Assuming that the Fourth then itself, fact, ren- in and of this now applicable,42 is must Amendment we repugnant wiretaps to the ders the provi requirements of that examine Since, Fourth as will be Amendment. provides Fourth Amendment sion. The shown, we are unable conclude that to as follows: under a search warrant the absence of right people to be secure The fatal, is we must these circumstances houses, papers, ef- persons, and their then evaluate otherwise the reasonable- fects, searches unreasonable infringement pri- ness of the of Ivanov’s violated, seizures, and be and shall not vacy. upon issue, no shall but Warrants by probable cause, supported Requirement. or Oath The a. Warrant affirmation, particularly describ- exceptions to re- the warrant place searched, be represent reponses quirement cautious persons things or be seized. part Supreme spe- on the Court to exigent clauses of The two substantive cific factual situations. signifi- possess independent Thus, may amendment an searched automobile be seizures, First, prevent cance. all searches without a warrant to the trans- warrant, by locality even must be if authorized fer of to another contraband minimum, opportunity At reasonable43 a when there is insufficient probable may form of means that some cause obtain a warrant.45 An officer person for the search and seizure must exist. search a inci- without a warrant Second, may a search even reasonable be ato lawful arrest dent or when he probable if the official fails to secure a unlawful cause to arrest order possible . . excuse warrant. “We cannot . avert destruction of evidence attempt of a warrant possibility absence search without when there is of an a showing by exemption injure a weapon those who seek a to use concealed escape.46 from the constitutional that the mandate or' In other officer facilitate exigencies though circumstances, the situation probable made even 44 imperative.” may exist, course cause to arrest an officer electronic, poses whatever, 42. The at here surveillances issue no inconvenience least prior constitutionally cognizable occurred deci Court’s none which is in a States, 347, legal system regards sion in Katz v. United 389 U.S. warrantless 507, (1967), ‘per unreasonable,’ 88 19 L.Ed.2d but S.Ct. 576 in the ab- searches se ” rely pre-Katz ‘exigent Coolidge “the Government does not sence of circumstances.’ F.Supp. 66, Hampshire, 443, law . . . .” 318 70 v. New 403 470-471 U.S. (1970). (1971). Kate overturned the earlier rule “[Ejxcept carefully the Fourth Amendment did extend certain defined class- cases, private property to electronic a surveillance unless there es of a search of trespass. See, e.g., proper technical Olmstead v. without consent un- ‘unreasonable’ States, 438, 564, United 277 it lias U.S. 48 S.Ct. 72 less been authorized a valid search (1928). Thus, government’s Municipal Court, L.Ed. 944 posture warrant.” v. Camara 387 523, pro 528-529, 1727, obviates the need to review the U.S. 87 S.Ct. 18 L.Ed.2d (1967). cedure which the surveillance 930 devices were installed. g., States, 45. E. Carroll United 267 U.S. 132, (1925). States, 280, 43. Go-Bart 45 S.Ct. Co. v. United 69 L.Ed. 543 282 U.S. 357, 344, 153, (1931). L.Ed. S.Ct. g., Robinson, 46. E. United States v. 414 U.S. Spritzer, See Electronic Surveillance 218, 467, ; 94 S.Ct. 38 L.Ed.2d 427 Magistrate: Oppo- leave of the The Case in Cupp Murphy, 291, 93 S.Ct. sition, 199, (1969). 118 U.Pa.L.Rev. (1973) ; 36 L.Ed.2d 900 v. Cal Chimel ifornia, McDonald v. U.S. 23 L. (1969). L.Ed. Ed.2d requirement “The of a im- warrant to seize properly person of information.51 A court should be may he has “frisk” wary interfering flow. questioning he with this if believes detained for person armed and if, as It would be unfortunate indeed dangerous.47 suggest, seems Gibbons illegally perform President must act am- narrowed the Court has also Yet, his constitutional if the duties. warrant of the Fourth Amendment bit secretly quickly President must act requirement the intrusion where investigate attempt by worker.48 a welfare “home visit” agent intelligence important to obtain rehabilita- Several considerations—the information, may such a follow result visit, aspects the noncriminal of the tive analysis. Also, under Gibbons’ investigation, of the nature foreign intelligence gathering ais clan- having strong an effi- state interest highly activity, destine and unstructured procedure whose ob- cient administrative the need for electronic surveillance ject promote of the the welfare is to anticipated often cannot in advance. recipients assistance children of —com- Certainly officers, occasions when arise that the conclusion bined to lead to the acting intrusion, authority, under the President’s a if warrantless viewed seeking foreign intelligence informa- subject search, is not to the warrant tion, exigent where circumstances would requirement.49 excuse a warrant. To demand that such acknowledge requiring While we officers be so sensitive to nuances of prior approval of electronic surveillance complex they situations that must inter- might present in cases one have like rupt their activities and rush to the salutary judge, some for ex effects —a magistrate nearest available to seek a ample, Executive could assure that seriously warrant would fetter Exec- foreign using was not intel the cloak performance foreign utive in the of his ligence engage gathering information affairs duties. of domes indiscriminate surveillance sum, that, we hold cir balance, organizations political 50—on tic case, prior judicial cumstances of this rely, the better course is to at least required authorization was not since the good instance, the first faith of on the district court found that the surveil the Executive ille and the sanctions for lances of Ivanov were “conducted and gal post-search surveillances incident purpose solely maintained for litigation. criminal or civil One gathering foreign intelligence informa prompted elements that tion.” dispense Court to re with the warrant quirement in the “home visit” situation probable requirement cause b. The strong public was the involved. interest present ease, too, strong public Although, In the held, a as we have a warrant operation prior pre- interest exists: the efficient an search absolute foreign policy-making foreign intelligence requisite field Executive’s apparatus depends a sur- continuous flow when the President has authorized Terry Ohio, 47. v. Dis U.S. 50. See United States (1968). Court, 20 L.Ed.2d 889 92 S.Ct. trict (1972). L.Ed.2d 752 Wyman James, case, course, in this The surveillance 27 L.Ed.2d 408 designed impair seems to have been escape powers foreign of sensitive infor- Slocum, 49. See also F. United States v. concerning foreign policy and mation (3d 1972) (warrantless 2d 1180 use of military posture We United States. magnometer and warrantless search of hand activity distinguish this see no reason luggage i)assenger gathering activity. of airline in some circum intelligence unconstitutional). 2511(3). stances are See 18 U.S.C. § judge upon, they veillance, will be called veillance had a reasonable belief legali- activity instances, some to ascertain the that criminal would be un- already ty ignore of a warrantless search earthed would be to the over- post- opportunity riding object conducted.52 The of the intrusions. Since judicial represents primary purpose im- search an review of these searches is safeguard portant foreign intelligence Amend- to tion, Fourth secure informa- rights judge, reviewing ment might and should particu- deter abuse when necessary must, be caused relaxa- lar all, search above be assured requirement. tion the warrant primary pur- inwas fact its pose and that accumulation evi- de foundation activity dence of criminal was inciden- reasonableness, termination of the cru tal. court, If the example, finds legality cial test of under the Fourth political members of a domestic or- Amendment, probable cause ganization subjects wiretaps were the Although standard.53 most often formu agents looking that the for evi- probable lated in terms officer’s dence of criminal conduct unrelated to activity cause to that criminal believe President, affairs needs of a place, has or will take the standard undoubtedly then he would hold the sur- government be modified when the inter illegal veillances to appro- be and take compels an some est intrusion on based priate measures. thing other than a reasonable of belief activity, especially criminal when the Since, reiterate, we the district scope of the intrusion is limited.54 court has found that the second set of government interceptions The interest here of conversations of Ivanov necessary acquire “solely —to gathering the information purpose for of judgment foreign intelligence they an information,” exercise informed in for eign surely weighty. affairs —is More under reasonable the Fourth Amend over, conceivably cer ment. already undertake we officers Because have conclud ed tain electronic surveillance with no sus that a required warrant un picion may activity here, that a der we, criminal the circumstances there Thus, fore, they a discovered. demand that hold that Ivanov’s Fourth Amend engaging rights in show that before such sur- ment were not violated.55 legality 3504(a)(2), portion 52. A of a court must examine the U.S.O. a Organized search, example, pro- in 1970, when a defendant a for Crime Control Act of suppress part criminal case evidence vides in moves relevant as follows : produced by (a) plaintiff any trial, hearing pro- the search or when the or other damage ceeding request any court, grand a civil his jury, in suit bases for in or before alleged department, officer, regulatory agency, relief federal officers on the illegality person body, authority a search of his home. of of the United supra. note 21 See States— Municipal Court, 523, v. Camara 387 U.S. (2) disclosure of information for deter- 534, (1967). 1727, 18 L.Ed.2d 930 S.Ct. mination if evidence is inadmissible be- However, upon probable search based product primary cause it is the of un- an. comport may cause with the Fourth occurring prior 19, lawful act to June if, example, scope is un- Amendment its 1968, or because it was obtained reasonably Terry Ohio, v. broad. See exploitation occurring an unlawful act 18, 1, 868, 20 88 S.Ct. L.Ed.2d 889 prior 19, 1968, to June shall not be re- (1968). quired unless sucli information be rel- William, 143, pending 54. Adams v. 407 U.S. 92 S.Ct. evant to a claim of such inadmis- (1972) Wyman ; sibility ; L.Ed.2d 612 James, L.Ed. 400 U.S. S.Ct. Terry (1971) Ohio, ; (b) 2d 408 392 U.S. As used this section “unlawful ; L.Ed.2d Ca- act” means tronic, mechanical, act the use of elec- Municipal Court, (as mara v. or other device de- 2510(5) title) 18 L.Ed.2d 930 fined section this legal question ther the appeal involved EXAMINATION IN CAMERA IY. au- the President has —whether distinguished district court thority to conduct warrantless surveil- judge in camera the records reviewed affairs field—or lances holding wiretaps issue here before underpinnings factual —whether legal. If the sur to be the surveillances were, fact, con- surveillances at issue illegal, Aider- found veillances had been pursuant for- to the President’s ducted required course, have dis man, would eign authority. affairs prior of these records to Ivanov closure Moreover, of information the nature hearing adversary issue of an respect in these contained records However, question con since the taint. for- nation with the relations of this to eign powers fronting to the sec the district dis- counsels court-ordered legality interceptions set was the ond compelling situ- closure most tainted taps, not the existence of district Thus, hold that the ations. we evidence, was within his discretion to order disclosure of court’s failure grant request deny Ivanov’s or to intercep- of the second records set hearing. The disclosure and a exercise regarding hearing or to hold a tions guided by of this discretion is to be an abuse of dis- them did not constitute complexity of the fac evaluation cretion. by the court and tors to be considered adversary presen likelihood that CONCLUSION. V. substantially promote tation would present case raises issues decision.56 more accurate highest cerning a clash of interests' stated, vitality chal Ivanov does not this nation. As concern to the finding system gov- lenge typical of the district court our As under implicit ernment, in the that the “surveillances were conducted the conundrum brought ju- solely purpose controversy the and gathering for maintained the has been foreign intelligence resolution. diciary informa for authoritative he was that the Communica- tion.” Nor does he contend that Ivanov contends bar object do construed to the because of should be of surveillance tions Act activity of material political and the use or because such surveillance mestic prior espionage thereby without that unrelated to his own obtained and conduct facts, judicial President fail to the we authorization concerns. Under these constitutionally may not records of his see how disclosure of the the counselors hearing telephone wiretaps evidentiary intercept communications. his and an government light the Com- that ei- The asserts would to shed further serve quired is made that determination before a or laws violation of the Constitution illegal. was, fact, any regulation For or or the surveillance the United States question promulgated pursuant the contents or the thereto. the whether standard provision interception appear be- had been di that the It would this “fruits” quite operative vulged appears evidence has been trial similar comes when at gathered the have contents unlawful means. Since we whether the lawful, illegal have taint the searches herein be surveillance determined “fruits” of an undoubtedly, provision would, appears inapposite. need We Ivanov this ed a conviction. records, claiming therefore, not, the in- the discuss the effect of disclosure of ask for tervening provision effectively probe, this on the at enactment of that he could not hearing, had Court’s mandate Alderman. whether the contents issue interpretation, Judge Judge divulged. an been such Since Chief Seitz Gibbons Under purport then seem to ille- of Alderman would conclude that these surveillances were grant gal, they, course, require court Ivanov’s do deal issue. that the district with this Thus, Judge request. con under Aldisert’s hold, Judge there would be disclosure If we inti- struction of § Aldisert mates, before under the records of the surveillances surveillance illegal. illegal interception, have held to be unless such surveillances been thereof, trial, fruits has been introduced at Totten v. United f. C 105,106-107, seem that re- L.Ed. 605 would disclosure would be against country’s municatíons Act should not so con- And be balanced and, respect needs, say strued the constitu- self-defense we cannot concluding question, tional maintains there is district erred engage in Presidential here war- that the electronic surveillance did gather foreign upon rantless surveillance to not trench Ivanov’s Fourth Amend- intelligence rights.58 information. ment Accordingly, judgment dis- knotty Principled adjudication of this denying request trict court Ivanov’s properly matter achieved cannot hearing evidentiary disclosure preference doctrinaire for one interest bewill affirmed. authority or the Both executive other. society’s affairs area and Judge SEITZ, (concurring Chief privacy significance, interest are of dissenting). equally worthy judicial and are affirming cern. I concur in the district disposition questions respect- court’s ever, phrases Rarely, do if illegal, first, concededly set of Constitution themselves decide cases My surveillances. in this views matter interpretative some without least as- are well stated Part II of Aldi- judiciary. sistance from The Con- opinion. sert’s through speaks judges, stitution but phrases are seldom so cabined toas surveillances, As to the set of second flexibility. Charged exclude all with the majority the taps found that these wire- assignment choice, judge to make a procure and their use evidence responsible must be he choice assuming Ivanov, introduced makes. such use was them, made nei- violated ther 605 of the Communications Act importance re- the President’s Finding nor the Fourth Amendment. sponsibilities in the affairs field wiretaps legal, majority has held requires judicial branch act with properly the district court refused place the utmost care lim- when asked logs to order disclosure to Ivanov of the powers on the itations President’s summarizing these surveillances and Commander-in-Chief, that area. As properly the court below also country guard President must hearing refused to hold an evidentiary foreign aggression, sabotage, espio- on the issue of I believe nage. Obligated taint. Because to conduct nation’s this that by these matters are settled Su- foreign affairs, he be of must aware the preme Court decisions and that the ma- posture foreign of nations toward the jority “overruling” Supreme is effect States, intelligence United the activities decisions, silentio, Court sub I dissent uncovering foreign of countries aimed at majority’s from the affirmance of dis- secrets, policy posi- American the and trict respecting court action the second foreign range on tions of states a broad set of surveillances. of international issues. sure, be To the course wire- of such I. 605 THE OF § COMMUNICA- tapping conversations of alien officials TIONS ACT agents, perhaps and of American and citizens, will be overheard and to majority that As opinion, I read the two extent, infringed. privacy their But the support conclusions its decision that § proscribes only Fourth Amendment “un- 605 of the Communications Act has not reasonable” searches and seizures.57 logical been First, violated here. or- Slocum, curity 57. United foreign aggression 464 F.2d en- and (3d 1972). croachment, highest duty every is the na- tion, nearly and to attain these ends all oth- Nearly years Field, ago, Justice Mr. er considerations are to be subordinated.” speaking Supreme Court, the observed: Case, 581, 606, Chinese Exclusion preserve give independence, 623, 630, “To (1889). and se- 32 L.Ed. 1068 participant acquires means wiretapping one to a com- der, access because may munication; reception that occur acquiring information” would fol- regarding lowing interception transmission, decisions while President’s make the likely during to advance would occur and “more transmission to affairs majority preceding reception interests,” the communica- national our Congress by did not limit presumes tion someone the inter- that other than wiretap ability ceptor. to obtain The third there- clause President’s § intelligence fore, inapplicable when information also here. explicit discussion adopted. 605 without § (1) 605: Clause Element Second, ma- wiretaps. § use of is absolute- jority “[t]here declares that government violated If has § n Congress contem- ly no indication by then, be the sec- it must virtue of interceptions plated where situations prohibition. The tion’s second or fourth divulgences” unaccompanied by (1) part of second forbids § Congress presumably since reasons that person by (2) the sender authorized President’s to limit did not intend intercept (3) divulge publish regard- wiretaps stay informed use of meaning contents, the communication’s affairs, ing foreign not violated 605 is § person.1 or existence This by wiretap-derived evidence se- use portion by was construed § espionage These convictions. cure Supreme Court Nardone v. majority’s clusions, relied swpra, States, in-court which involved holding been § agents testimony federal as to prem- breached, do not follow from their intercepted contents communications contradict ises government argument wiretaps. The precedent well as the.terms § government Nardone advanced striking first bears a resemblance Initially, I insufficient at- think that argument accepted majority here. paid been it- tention has section government ex- The contended that self. 605 of the Communica- Section charged ecutive care branch to take Act, (1970), con- tions U.S.C. § be of the United States laws prohibitions. four distinct tains faithfully Congress executed, employees prohibition is first directed at passed the Act time it Communications of communications is not facilities and government’s use of was aware of here. Cf. relevant Nardone v. United wiretap faithfully evidence execute Congress laws, did federal criminal prohibition 82 L.Ed. 314 wiretaps not mention in con- this use of contained third clause sidering 605 of Communications reception concerns com- unauthorized Act, that, therefore, must ; pro- munications and fourth second presumed federal to have excluded interception. concern The Act hibitions acting agents, in furtherance of their reception intercep- define does not laws, duty to enforce criminal tion, attributing but, to the drafters a persons by Id. those covered at § statutory desire that each statement be 381-383, 58 S.Ct. 275. meaningful repetitive, merely and not I distinguish by would in Nardone that these terms The Court observed point only in in time which not was there no discussion at the unauthorized prohi- single prohibition. 1. Section 605 is written as a The second sentence tion of each composed separable joined of four sentences bition reads: by proviso, being person semi-colons and a and no au- relevant not here, modifying any intercept the entire section. For ease shall thorized sender discussion, divulge publish separable I have numbered the and or communication sentences, constituting contents, existence, substance, purport, each ef- a self-contained prohibition actions, meaning intercepted fect, com- different in the or of such order any assigned person; set forth the statute . . . . also munication required numbers to the elements for viola- U.S.C. § Nardone, 275, apply .adoption federal 58 S.Ct.' use at 605 of the id. of § agents equal there force both cases. wiretaps, but made of legislative discussion any no record of concerning adoption be- There is of course a distinction The and Nardone. tween ease The case bills de- noted Court further that several us, majority, before as cast government signed prohibit explicitly to foreign powers volves Presidential over shortly wiretapping before had failed affairs, while Nardone concerned execu- passage Communications Act. authority tive over domestic matters. however, circumstances, were in- These distinction, however, This no le- makes that the sufficient to overcome “the fact plain gal constitutional difference. anyone, un- words of 605 forbid provision majority cited au- sender, to inter- less authorized thority for executive decision-mak- message, cept telephone and direct “foreign intelligence informa- person’ equally language clear that ‘no supposedly II, tion” aids Article sec- message divulge publish shall tion 2’s declaration that Presi- “[t]he ” ‘any person.’ Id. substance to at dent shall be Army Chief of Commander [emphasis origi- 58 S.Ct. Navy States, of the United nal], explaining in the its refusal and of Militia several legislative history specu- absence of when called into the actual Service of ” Congress late that intended exclude the United . . . . This agents federal from the strictures of § provision certainly to be cannot be said 605, the Court added: any important II, more than sec- Article urged It is charge that a construction be tion 3’s “take President given the section which would exclude faithfully care that the Laws be exe- agents improb- federal cuted,” wiretapping since nor can be deemed any able that intended to ham- accomplishment more crucial to per impede the activities of the President’s duties as Commander-in- government in the detection and Chief than to his faithful execution of punishment of crime. The answer is the laws. Congress may . . . have however, majority, apparently at- thought important it less that some significance taches fact that the go justice unwhipped offenders powers foreign President has over af- than that officers should resort express fairs that made methods deemed inconsistent with majority’s principal Constitution. The ethical standards destructive of authority point as to this is United personal liberty. Curtiss-Wright Export Corp., States v. Id. at 58 S.Ct. at 276. 81 L.Ed. 255 year I am (1936), unable see difference be- decided one Nar- before argument rejected by Curtiss-Wright tween the done. the Su- stated that preme government possessed federal Nardone that ac- certain cepted by majority powers foreign here. Both over ar- affairs inherent in gue plain language sovereignty. all-inclusive national Id. at 57 S. covering person upholding statute permit- should Ct. 216. In a statute ting apply be construed not federal of- the President to make certain deci- performing assigned by bearing ficers tasks sions affairs charge delegation Constitution to the executive branch. of unconstitutional rely legislative legislative Both power, on the absence the Court observed history, require explicit and both would over was not affairs legislative legislative consideration of a 319-322, limitation alone. Id. at 57 S. on the rejecting executive’s freedom of action be- Ct. 216. While the statement Curtis-Wright fore foreign a statute could be read to restrict in that certain statutory it. The powers canons of construction affairs inhere national sover- eignty, considered the Court constitutional considerations aside, (see opin- certainly majority The the President is no note 37 “Lone Ranger” foreign maj'ority ion), field, relies Cur- the here affairs tiss-Wright proposition possessed, majority intimates, for- for the as the eign implied powers powers may be vast constitutional affairs to exer be powers Congress. independently even federal the Constitution if cised ofAll express. government’s powers, affairs must be the over domestic federal includ why explains ing foreign Yet, maj'ority powers, subject the never affairs are implied limitations, power, this nebulous federal to constitutional United solely Curtiss-Wright Export assuming Corp., even that it addressed is States greater supra, executive, is to the entitled 299 U.S. at 57 S.Ct. express power of such limitation on deference than an the one President’s Congressional power such Nardone involved. is the exercise executive as power. President takes “When the mea Perhaps has maj'ority concluded incompatible expressed with sures Congress could not limit the Presi- implied Congress, power his is at will wiretap in order to obtain dent’s ebb, rely only then he for can lowest foreign intelligence information.2 With- powers upon minus his constitutional own stating explicitly conclusion, out this Congress powers constitutional “any majority indicates that action the matter. can over Courts sustain ex [Congress] arguably hamper would Presidential control such a clusive per- the President’s effective disabling Congress only by case foreign af- formance of his duties in the acting upon subject. Presiden fairs field raised constitu- would have power at so tial claim to a once conclu majority questions.” tional does preclusive must scrutinized be sive and supporting any precedent this cite caution, is is for what with at stake statement, ques- it nor does state what equilibrium our consti established As I read Arti- tions would raised. be Youngstown system.” Sheet & tutional Constitution, cles I and II Sawyer, 579, 637- Co. v. Tube 638, Congress as has well the President L.Ed. 1153 powers foreign Congress affairs. concurring) (Jackson, J., [foot regulate empowered to commerce with omitted], note foreign nations, punish to define and high any power in committed on crimes seas I cannot conceive nations, foreign the law of field that the President offenses affairs armies, war, support exclusively for which declare to raise and exercises essential; navy, provide per- provide wiretapping and maintain a I cannot intimating calling repel legal forth the militia basis for ceive governing vasions, Congress constitutionally limit and make rules could not pow- power wiretap to ob- armed forces. President’s President’s intelligence “foreign area, inde- ers in the affairs information.” tain legislative pendent delegations, Apparently, Hand Learned judges view, far he more limited: is Commander-in- the same as were curring opinion Chief of armed forces receives in his (2d 1950). public ministers; treaties, Coplon, make he can F.2d 629 espionage concurrence, ap- case, Coplon was, Senate’s like point ambassadors, again involving possible use of wire- with Senate case notes, approval. majority tap As the fruits. majority tinguishing added a from this case. Yor- While disclaimer Nardone conclusion, certainly fear of of this the intimation that such done does not reflect read- might fairly says reached mean because such conclusion is essen- 605 to what position. ques- majority’s reading If tial would raise constitutional yet clearly ean limit executive actions useful allowed Con- tions — gressional operations, there affairs is no basis for dis- restriction of executive action. Judge engaged lengthy Hand in no not violate dis 605 because the of federal § distinguish acting agents really intelli ficers are cussion as gence making wiretaps interception from It executive others. safe Judge “person” the relevant to “foreign intelligence” that Hand knew that viewed as in assume probably terceptor is, thus, executive; was divul gence agents sought wiretapping executive, to an es other that led of the charge. pionage assume who One also receive the information in such ca argue government pacity, not that hence that the did would not violate stat Congressional “divulgees” limitation af ute because the would be constitutionally part “person” wiretapping of the same as the “divul fairs was gors.” gov (1970) 153(i) from limitation of other Cf. different 47 U.S.C. § gov “person” include, wiretapping indeed, (defining ernment as well as — argument individuals, partnerships, associations, ernment has not raised the inquiring corporations). this case. Instead of into the trusts and which, constitutionality law, if he of the that I do think needs constitutionality, had doubted the Act’s argues be resolved here. Ivanov do, required he would to Mar have been divulgence the relevant occurred at trial (1 bury Cranch) 137, Madison, government when the introduced evi- 175-180, 2 Judge (1803), L.Ed. 60 Hand wiretaps. dence obtained use of the validity Coplon declared that the of the Nardone deci- Court’s first wiretap ruling -was- covered government sion held that could not Coplon, su Nardone. United States v. testimony introduce on the content of pra, F.2d at 636. wiretaps. decision, The second Nardone Nardone v. Judge Hand, Like I see can no basis (1939), S.Ct. L.Ed. distinguishing Coplon Nardone, from interception held that the fruits of the distinguish nor I can this case also could not be introduced. Id. at Thus, perceiving those. no difference Assuming 340-341, 60 266. Nardone, between this case and I would again dealing with the agents find that the federal involved prohibition second contained in I § category persons here fall within the holding would read Nardone II as described in the first element of 605’s § wiretap’s the use of a fruits in second clause. divulgence prohibited stituted § 605. (! n ) (S) 605: Clause Elements & § 605: § Clause U government dispute does it falls within the second ground element precise § While the for the Nar- agents prohibition; 605’s second federal me, done II decision is not clear to intercept involving did communications illegality evidentiary derivative government contends, Ivanov. The wiretaps how- use of is. illegality This be- ever, agents divulge that federal did not apparent comes more examination the communication’s contents oth- prohibition the final contained in person, er required third fourth elements The (1) any section’s last clause forbids for violation person clause who has received or become aware agents two. Of course the made who “existence, existence, meaning or contents interception divulged (2) intercepted communication without contents, substance, effect, purport, or (3) the sender’s authorization from di- meaning” intercepted communica- vulging, publishing using or such infor- agents. Perhaps,

tion mation for his own benefit or the divulgence implies, Aldisert such does person.3 benefit of another unauthorized prohibition provides acquainted : The fourth contents, become -with the sub- person having stance, purport, . effect, . . and no received meaning intercepted having any part thereof, such communication same or knowing

613 States, (1969); prohibits use Nardone v. 308 expressly United clause This 338, 341-342, 266, 84 wiretap 60 L.Ed. S.Ct. information. U.S. of Coplon, (1939); United 307 jus- Supreme only remarks The supra, F.2d at 185 636-640. referring expressly to have made tices Alderman, decision in to in the dissent Since are contained this clause changed Congress purportedly 114, States, 316 United Goldstein gov- determining (1942). method for taint 1000, 86 1312 L.Ed. 62 S.Ct. wiretapping. Organized majority The decided that Goldstein ernment The provides, in parties of 1970 to the Crime Control Act defendants who not object standing part, from surveil- relevant taint to lacked communication prior of date wiretap lances to effective of fruits to introduction Safe 121-122, In Omnibus Crime Control and Streets 1000. Id. at 62 them. dissent, S.Ct. Murphy, joined Act of shall be determined dis- by Chief 1968 Justice hearing only major- and an in camera closure if Stone, who voted with the Justice judge proceeding II, convinces the that the in Nardone I and Justice ities relevant, arguably II, surveillances are 18 Frankfurter, Nardone who authored standing 3504(a)(2) (1970), disagreed and that U.S.C. § with the Court courts shall consider claims that The dis- thus reached the merits. part such surveillances have tainted the evi- found this senters fourth § controlling.” occurring dence a crime than more “unequivocal and to be years surveillance, five after the 125-126, “In U. at 316 U.S. S.Ct. 3504(a)(3) (1970). sought pro- The bar enacting 605, Congress S.C. to § § inapplicable large against consideration of is society taint tect wiretapping evils wiretaps here since oc- relevant and kindred unauthorized years curred within sought of the private two acts into intrusions intercourse allegedly proved,4 to be modern media ducted means wiretap present- question fruits. The communication, telephone, telegraph, and ed, however, pro- whether the 1970 prohibits Act’s end radio. To that the statute governs determining cedure for taint interception the divul- and, so, if messages this case whether is consti- gence private without tutional. sender, use consent but also any per- acquired of information so Congress specifically provided that the 125, son not entitled it.” Id. at applies proceedings, to all Act therefore, would, I find at 1006. commenced, whenever after effective prohibits wiretap use Organized § date. Crime Control Act for formation obtain evidence 223, 703. Con- ch. Stat. § trial. gress clearly also intended to alter the procedure forth Alderman for set de- Hearing & Disclosure 60S: § termining wiretaps. pre-1968 taint from wiretaps H.R.Rep.No.91-1549, derivative use 1970 U.S. Since alleged by illegal by Cong. pp. Admin.News, Ivanov is made Code & illegality question here, precise question becomes The how- 4027. ever, of taint. identical whether intended wiretap change information disclosed must the rule of Alderman for the cas- hearing actually must be defendant before and as es the Court objec- held Alder introduced, to resolve the of taint. to which issue evidence made, passage man v. tion was before 183-185, 22 L.Ed.2d Act. obtained, sucli information shall di- was so his own for the benefit benefit or thereto, vulge publish contents, existence, another not entitled 47 U.S.O. substance, purport, meaning of effect or any part thereof, same Attorney or use the Gen- Letter of June 1969 from same or contained therein eral Mitchell. information wording support impair statute’s would statute did not the President’s restricting procedure pardon powers, use de- of its and that the 1870 act termining pro- taint cases neither divested the Court of spective jurisdiction acquired admission of evidence was the before the act’s subject controversy; applies “upon passage required nor the Court to re- by aggrieved party a claim a that evi- verse Court of decision in ac- the Claims ” dence is inadmissible . . . . re- cordance with the statute’s directive garding (1970). 3504(a)(1) Nothing.I U.S.C. § the admission and of evi- effect legislative history have found in the appo- dence. Id. I believe that Klein is Congress the 1970 Act indicates upon that site to and doubt casts the consti- apply the determina- tutionality applying tended Act to the 1970 Act to tions, propriety passage, after its on the Ivanov. Because I feel the intent that introduction of evidence before apply the 1970 Act passage of the 1970 Act. While the here is not made clear language the statute’s purport statute as relevant here does history applica- change propriety might of admission tion of the statute this case evidence, only changes constitutional, but rather I would find that the determining admissibility, method for inapplicable proceed- 1970 Act is to this recognized ing. the Alderman Court that the ascertaining method of taint well determine whether evidence is admitted SCOPE II. OF SUPREME COURT or excluded. See Alderman v. United MANDATE supra, States, 183-185, at U.S. suggesting disposition on § S.Ct. 961. grounds, point I comment on must only Not Ido find limitation of the government raised for first questions introduction of Act petition rehearing time in its but evidence after the Act’s effective date plausible, majority. not reached When this also I such construc- but find Supreme Court, case was before the necessary tion doubt to avoid serious as Solicitor General revealed that conversa- constitutionality. to the statute’s I can- involving tions Ivanov had been over- Klein, not dismiss United States v. through wiretaps. heard question The (13 Wall.) 128, U.S. 20 L.Ed. 519 possible of a 605 violation was not § (1872), dealing solely a case as with the Supreme raised at that time. The Court Supreme right Court’s to determine the only thus addressed the matter as if pardon. presidential Klein effect of a potential Fourth Amendment violation’ concerning the questions involved three Consequently, involved. in re- Congressional enactments. effect manding court, the case to the district question effect was the The first Supreme Court directed that “[t]he pardon statute on President’s District Court should confine the evi- powers. The second at Id. 141-142. presented by dence both sides to that question stat- of an 1870 was the effect which material to the jurisdiction. Supreme ute Court’s on possible petitioner’s violation of a question was

Id. The final at 143-148. rights, Fourth Amendment provisions the 1870 act’s effect of illegally tent of conversations overheard prescribing could be the evidence that rights those violated findings upon certain and the relied relevance of such conversations to required on the basis of result petitioner’s subsequent conviction.” Al- had, findings. The of Claims Id. Court States, supra, derman v. United 394 in Klein’s 1869, rendered a decision arguing at 973. After giving President’s favor, effect to the before the government validity district court the using grant pardon amnesty action under proscribed evidence 1870 act. government urges now Fourth Supreme questions Court held that 1867 Amendment could be reached ALDISERT, Supreme (concur- with the Circuit consistent remand

on ring dissenting.) mandate.5 Court’s judgment I would reverse final stated proceedings conviction and remand these controlling as to a mandate “[w]hile district for reconsideration. compass, re- matters within Assuming conceding without a constitu- to other is free as mand a lower court prerogative tional of the Chief Execu- Sprague National Ticonic issues.” intercept, persuaded tive to I am Bank, the strictures of 605 of the Communi- mat- Such L.Ed. 1184 interpreted by cations Act of “disposition open their unless ters the Court in Nardone v. United . was . by mandate . the . 58 82 S.Ct. 314 L.Ed. in the necessarily implied claim in the (1937), prevents divulging publishing or party’s suit, failure original and [the interception. the My contents of the implied waiv- an constituted] raise them precisely view coincides with that taken not was issue 605 er.” Id. § Since the Department of Justice under At- not remand, prior was it raised torneys Clark, General Tom J. How- C. Supreme disposed of necessarily McGrath, ard Brownell, Herbert Jr., possibili- mandate; and since Court Rogers William P. and Robert F. Kenne- known to ty was not violation 605 § dy. petition of his Ivanov at the time the issue to raise his failure Court, I. im- prior be deemed cannot to remand proceeding Before a into discussion of intent of the plied The obvious waiver. III, part infra, this issue I am con- framing mandate Supreme strained to set forth observa- additional remand proceedings on to limit was present equally tions to in detail government’s im- with connected issues portant upon govern- panel issue which legality wiretapping. The certainly upon this court was not divided and under ment action § appears which there unanimity to be an issue. such the full court: the district court’s hold- be dis- Finding should case designated that the first logs, set of grounds, I would posed § as “4001-S*” and “4002-S*” did not issues. Amendment Fourth reach the put taint the To conviction. these issues proper necessary perspective find I it opin- joins Judge in this Dusen Van to set forth the facts. ion. Igor Ivanov, Appellant na Soviet opinion joins in this Aldisert charged having tional, was with con except contained discussion Butenko, spired Ameri with one John 2, Ele- 605: Clause espionage headed can, section “§ to violate the federal 1(c) 794(a) statute, (1).” U.S.C. ment § foreign government,” government ax>pears aid read as It mation to question argued before the district § follows: indicating (a) Whoever, matter this without intent or reason to court Supreme scope beyond injury might be believe that is to be used to the govern- mandate, further, advantage but of the United States or to the Court’s legali- apparently communicates, nation, matter of ment raised the deliv- of a ty question ers, transmits, attempts Even if this were under or commu- or beyond scope Supreme arguably nicate, deliver, transmit, any foreign or question mandate, government, party there some or to faction or or Court’s government estopped military whether would naval force or within arguing country, recognized unrecog- here. from whether or States, any rep- nized the United or to resentative, officer, employee, agent, 1. The relevant subsections of 18 U.S.C. sub- ject 794, “Gathering delivering thereof, directly citizen defense infor- either or (Count I), April October vanee to his conviction of conversa having conspired and with to vio tions have been overheard statutory prohibition against late through that surveillance.” Alderman acting agent foreign govern as an of a v. United 186-187, prior ment without notification the 89 973, 22 L.Ed.2d 176 Secretary State, U.S.C. § (Count II). jury Following a verdict of government remand, On conceded guilty, appellant Ivanov was sentenced to illegal interceptions that one set of twenty years’ imprisonment on I Count but convinced the district years’ imprisonment and five II, on Count these did not taint the conviction. ’ concurrently. the sentences to run district court found a second set of judgment This court affirmed the terceptions properly to have been autho- conviction him on Count I pre- rized rogative virtue of the President’s acquittal directed his on Count II. foreign intelligence to obtain Butenko, States 384 F.2d 554 information, appellant’s applica- denied (3d 1967). Appellant pe then filed disclosure, tion for denied an eviden- titions for certiorari in the United tiary hearing pertaining thereto, and en- Court. While the cases judgment tered new of conviction. pending, the Gener there Solicitor Ivanov, F.Supp. United States had al revealed that the United States (D.N.J.1972). appeal This followed. engaged in certain electronic surveil espionage precise nature of The the and Ivanov had lances and that Butenko conspiracy to transmit to was a scheme The Court or been overheard. Republics of the Union Soviet Socialist a remand the district court for dered to sys- plan of a and control command hearing, findings, “a and conclusions Strategic Air tem of Command (1) question with re on the of whether “465-L,” (SAC). the name Given spect any petitioner elec to there was system being by produced Interna- was violated his tronic surveillance which Company, subsidiary tional Electronic (2) rights, if Amendment and Fourth Telephone Tele- and International respect there was such surveillance with graph, and was an automatic electronic any petitioner, rele on the nature and system commander of which enabled the writing, indirectly, any document, code material which is photograph, book, signal book, sketch, possible petitioner’s violation of a Fourth negative, blueprint, plan, photographic rights, Amendment to the content of con- note, instrument, map, model, appliance, illegally by versations overheard surveil- relating national de- or information to the rights lance which violated those and to fense, punished by by shall be death or the relevance of such conversations to the imprisonment any years term petitioner’s or subsequent The conviction. life. findings District Court will make such (c) persons conspire If two or more questions appro- fact on those as section, priate violate this and one or more of light of the further evidence and persons such do act to effect the ob- existing of the entire record. If the Dis- ject conspiracy, parties each of the trict Court decides on the basis of such subject conspiracy to such shall be findings (1) that there was electronic sur- punishment provided for the respect offense which peti- veillance with to one or more object conspiracy. is the of such tioners but not which violated Amendment, although Fourth or Whoever, diplomatic other than a or consu- there was surveillance in violation attaché, lar officer or acts in the United petitioner’s one or more Fourth agent foreign government States as an of a rights, Amendment petitioner the conviction of such prior Secretary without notification by was not tainted the use of State, $5,000 shall be fined not more than obtained, evidence so it will enter fi- new imprisoned years, or than not more ten judgments nal of conviction based on the both. existing supplemented by record as 3. Tlie Court also ordered : findings, thereby preserving further all The District parties should confine the evi- right affected to seek further n presented by dence appropriate both appellate sides to that review. periods May 15, 1963, deploy and and his forces June to alert SAC August 27, 1963, up minute and from provide him June with designated de- and were the total force. Additional “4001- status of logs project are and These of this S*'” “4002-S*.” were the nature tails on government opinion. appellant. disclosed to our earlier summarized logs represented “there was conceded that these ille- We at 557. found F.2d gal con- surveillances but to buttress the contended that substantial evidence employed Butenko, as a their use did taint then the conviction. viction” of agreed. district court A administrator at the Internation- The second set control logs appellant Company, his “suffi- was not shown to al Electronic gov- by by counsel but examined evidence was offered was court cient government represented intimate camera. The ernment to show [Ivanov’s] logs conspiracy.” intercepted F. these reflected volvement with Ivanov, duly by versations 2d obtained at 563. Department of Justice in the exer- government proved that At trial right cise of the President’s to obtain appellant 29, 1963, was ob- on October foreign intelligence information. These Jersey, Englewood, New served government documents, sealed exhibits Nationals, Pavlov two Soviet A-l, A-2, A-3, accompanied Engle- Romashin, vicinity Attorney an affidavit of General parking An lot. wood railroad station setting John N. Mitchell forth the cir- drove Butenko, “driven automobile of, authority for, cumstances lot, parked, railroad station into the surveillance. ruled headlights and turned turned off the logs lawfully second set of obtained lights few min- parking within a theory under the set forth the Attor- automobile, driven now utes Soviet ney op- General and refused Ivanov the right front with Ivanov in the Pavlov portunity examining them or an evi- signaled lot, seat, parking into the came dentiary relating hearing thereto. turning headlights turning by off arguments separate Ivanov mounted lights. Here, parking was a di- on there relating logs. to each set of He con- Ivanov and rect confrontation between logs tended that the first set of was in- later, when Butenko and several minutes complete therefore, and, erred arrested, were the brief- defendants illegal ruling in its that the use of these in Butenko was found case of Soviet did not taint convic- surveillances F.2d at 563-564. automobile.” 384 argued Secondly, tion. he that the use logs reflecting Two sets of electronic of the surveillance evidence from the the re- introduced at logs were illegal, surveillances second set of was contraven- hearing backdrop of mand and form the of the Communications Section 605 appeal. The first set covered the 1934,4 this or, alternatively, Act of that use publication passed, 4. 47 605. Unauthorized U.S.C. the communication or ship or use of communications tlie of a under he is master whom person receiving assisting No or in re- serving, response subpena (sic) to a or ceiving, assisting transmitting, by competent jurisdic- or or issued a court of transmitting, any tion, interstate or or on demand of other lawful author- by ; ity person being di- communication wire or radio shall and no not authorized vulge publish contents, existence, by intercept any or the sender shall commu- substance, effect, purport, meaning divulge publish or nication and or the exist- thereof, except through ence, effect, contents, substance, purport, authorized chan- any reception, meaning intercepted nels of transmission or or of such communi- person addressee, any person person; than his cation to and no agent, attorney, person being or or em- entitled thereto shall receive or as- ployed receiving any or authorized to forward such com- sist interstate destination, proper by munication to its or to communication wire or radio use accounting distributing any officers of the the same or information therein con- communicating various centers over which tained for his own benefit or for the bene- prosecution ic this evidence surveillance of Ivanov un- conducted protections supervision produced der violated Fourth Amendment his no evidence guaranteed him an See Au Yi would have alien. waiTanted Ivanov’s ar- Immigration any engaging Lau rest v. United & unlawful activ- ity.” Agents Service, U.S.App.D. Martin, McWilliams, Naturalization Id. cert, 217, 223, denied, Conway Manning C. F.2d testified that no L.Ed.2d use made U.S. 92 S.Ct. results of those (1971), stating reports this aliens in coun surveillances and fur- no were protected try, pertaining citizens, are like nished their contents. generally Attorney Fourth Amendment. Assistant See United States who Kwong Colding, prosecuted Depart- Hai Chew case the two agents 596-597, ment 97 L.Ed. 576 of Justice him who assisted they testified were unaware electronic surveillance. II. Indeed, the district court observed throughout opinion: background Some factual first logs necessary. set of tapes The actual hearing The evidence at adduced only logs available; were not re- conclusively shows that Ivanov’s flecting summary of their contents way viction was tainted presented. Government witnesses reason of the unlawful electronic sur- practice testified that it was standard veillances conducted the Govern- tapes productive erase which were not ment. meaningful leads, evidence or and be- F.Supp. at 931. unproduc- cause these surveillances were There is no in the Court’s tive, taped interceptions were not knowledge mind, personal based preserved. The court found as fact: trial, and a careful review the intelligible “Rarely did conversa- adult hearing, adduced taint evidence through, tions conver- come no clear subsequent that the arrest and convic sation of Ivanov was received over the tion of Ivanov resulted from the Gov F.Supp. Using equipment.” 342 at 933. investigation independent ernment’s Delerme, the test of United States v. case, which electronic sur (3d 1972), I there F.2d 156 believe played veillances 4001-S* and 4002-S'x' support is substantial evidence to part. no finding.5 F.Supp. at 936. Typical testimony adduced at hearing Agent the that of Mc- was The electronic surveillances in this supervised wiretap- Williams who the case were ineffective and unsuccess- reported: ping. The district produced they best, was, ful. What admitted electron- innocuous, “McWilliams that the even when the viewed thereto; cast, fit another entitled not no or transmitted amateurs or others person intercepted having received such general xrablic, for the use the relat- or having acquaint- ships ing 19, 1934, communication or become in June distress. c. contents, substance, purport, YI, ed with the Title 48 Stat. 1103. effect, meaning any or the same or part knowing thereof, Delerme, such informa- 5. we drew a distinction between obtained, divulge was tion so shall or review of historical or narrative in a x>ub- facts existence, contents, substance, proceeding, lisli criminal and review of facts crit- imrport, meaning effect, question guilt. or of the same or ical to the ultimate factual any part thereof, case, emxdoy or use the or same In the former this court will clearly rule, information therein contained for his own erroneous while in lat- ter, benefit or for the benefit of another not we must determine whether there was Provided, supportive entitled thereto: That this sec- substantial evidence. Even apply receiving, applying shall tion test, di- substantial evidence I vulging, publishing, utilizing finding. or the con- would not disturb this tents radio communication broad-

619 legitimate in- from experienced evidence was derived FBI specially trained dependent sources. logs, Agents. An examination of reflecting the surveil- summaries of opinion demon- As district court’s nothing than more tapes, reveals lance strates, these conclusions do not follow. unintelligi- history of small talk log day. compiled for each One insignifi- chatter of such obvious ble days May There ten were the FBI discontinued cance that May May through 29. twenties— There of Ivanov electronic surveillance logs period. for were ten this 18, 1963, of its demon- June because may question “While there be some as to showing of non- strated consistent log which, the Court is satis- is productivity. covering logs period fied that all May through May 29, 1963, were F.Supp. at 937. possession Court and in of Ivanov’s specific no evidence The Court finds logs counsel, and that no cover- further assuming, Even of taint in this case. period missing, were arguendo, evidence ex- that some such destroyed.” F.Supp. or lost beyond isted, the Court is satisfied finding This is a of fact the district case the reasonable doubt court and I it. will disturb ultimate bur- has met its Government swpra. Delerme, States v. showing that no substantial or den Moreover, my independent own scruti- portion of the evidence measurable ny logs permits me these to more at his trial was used Ivanov specific my findings concerning these tainted. Preliminarily, exhibits. observé that I F.Supp. at 939. this court examine documents and Finally, Ivanov mounted a somewhat exhibits, which were before district argument relating May technical independent court and make de- its own gov- May 26 and 27 surveillances. The concerning See, terminations e. them. logs ernment for contended g., Shiya v. National Committee of Gi- cert, these before the district dates were bran, (2d 1967), 381 F.2d 602 Appellant court. claimed that these were denied, logs May May 27, not the rather, for 26 and but L.Ed.2d 842 logs May May for concerning dispute There is no opinion of the court admits date dating logs. of the 4001-S* This set concerning unclear, log, and states one presents log day ten sheets, one for each May 26,” May it “could be either 21 or May through May all concerning ap- other, “the date clearly Also, dated. one there pearing on C-6-2 could be read as either log day for each sheet each May 22, May 27, F.Supp. 1963.” 342 log two surveillances. Because the at 940. for both sheets surveillances were main- entry tained agent, one on either argued logs From this Ivanov that the log for the same date same May bears May destroyed 26 and agent’s course, different Of initials. lost, logs and that these contained ex- agents times, duty were on different at culpatory contradictory evidence. and on different dates. logs Additionally, continued, if he May for May missing, 26 and 27 were basis, With these a facts as an exami- possibility there existed a that evidence nation and re- of exhibits C-6-1 C-6-2 product admitted at trial was the appellant of veals that correct as- was from, serting leads obtained log and therefore taint- these two are for that sheets by, illegal May May ed May May Ap- and 22, respectively. 21 and surveillances; logs is, pellant that because these introduced before the district court, full-page were not there before the could be court a advertisement NBC finding government no May that News in 1963 issue of announcing log Times, May the with New York the 4001-S* sheet for yields documentary complete identity agents’ film “The Kremlin” would of the be Channel 4 from 9:30 Yet, shown on and entries initials. when exhibits log entry night. 10:30 that A on exhib- and compared C-8-1 C-8-2 are with the pro- log it a television May May C-6-1 shows that 4001-S* sheets for 21 and gram over- 22, similarity. “The Kremlin” was entitled there is no 9:55 heard electronic at surveillance ascribing I have no basis for a sinister p. log. Also, ap- date m. on the motive the erasures and alterations. pellant New York Times introduced a Thus, (1) I conclude that exhibits C- May 26, 1963, for television schedule showing log 6-1 and C-6-2 are the sheets of sur- “The Kremlin” not May May veillance 4002-S* for 21 and viewing scheduled on for time respectively, and that exhibits Moreover, comparison that date. log C-8-1 and C-8-2 are the sheets of agent’s on initials exhibits C-6-1 May surveillance 4002-S* for 26 and log C-6-2, controversy, sheets in May 27, respectively. log the initials the 4001-S* findings way These in no conflict with May May sheets for 21 and reveals those of Rather, the district court. that the initials and entries are identical. findings specific these make compared However, when with the general, and, district left agents’ initials entries on the 4001- such, make them more definite and sus- May May 27, log for S* sheets tainable. similarity. there is no It is clear log conclude, therefore, I sheets exhibits C-6-1 C-6-2 that as to the logs May May 22, 1963, respective- first charged for ly* 21 and set of the district court dis- responsibility properly under Court’s mandate. Con- this, however, From it does follow government fronted with a concession log that the 4002-S* surveillance sheets illegal, these surveillances were May May for 26 and been 27 have lost responsibility: had but one to determine destroyed. contrary, On the examina- peti- whether “the conviction of [the] tion of exhibits C-8-1 and C-8-2 reveals tioner was not tainted evi- the use of logs that these are the sheets of surveil- dence so obtained.” The district court May May lance for 26 and 4002-S* found no such taint from the first set of 27, respectively. First, an examination logs and I find no error in this determi- ostensibly C-8-1, exhibit dated nation. “5/21/63”, reveals that date on the log previously sheet read “5/26/63”. III. point The “6” was erased at some replaced “1”, yet awith “6” remains logs The second set of forms the back- clearly Secondly, ground visible underneath. major ap- issue comparison agents’ peal entries and government : whether could itials properly on exhibit C-8-1 with the 4001- prosecution utilize in a criminal log May they S* product discloses that anof electronic surveillance are identical. Thus, exhibit C-8-1 is solely obtained in strength on the log sheet of Attorney surveillance 4002-S* position General’s as the May representative gath- of the President in ering foreign intelligence information. Examination of exhibit C-8-2 reveals change. appear a similar This would outset, important At the it is em- log Upon be the phasize sheet for what is not us. “5/22/63”. before We are examination, however, closer a “tail” can interpreting Title III of the Omni- seen have been added to what was bus Crime Control and Safe Act Streets originally the “7” in “27” as make so to of 1968, 90-351, 19, 1968, Pub.L. June Following alteration, “2”. this 82 212, Stat. 18 seq. U.S.C. 2510 et § “5/27/63”, what was government became Both the appellant “5/22/63”. Secondly, comparison agree governing exhibit C-8-2 that the statute at the

621 interceptions 340, (concurring was Com- U.S. at 92 time of these S.Ct. at 2148 1103; 1934, opinion). Also, Act 48 munications Stat. I so frame the Therefore, question we are not 47 U.S.C. 605. and assume the constitutional § upon applicability power consider the called to of the President in order to meet Thus, statutory (3).6 I do not of 18 U.S.C. 2511 issue should be § inter- preted agreement sweep in States meet the issue reserved United as an with the Court, District 407 U.S. in v. United States Adams’ discourse III Part 297, 308, 2132, majority 2125, opinion. simply L.Ed. of the I 92 32 do not S.Ct. (1972): “Further, question. the instant 2d 752 meet this judgment scope requires on the ease no accept suggested hypothesis I power surveillance President’s appellant that must be assumed that “it Act] Title III of the 1968 [under the conversations of Ivanov overheard foreign pow- respect to the activities of wiretaps on the led evidence used at to country.” ers, or within without this his criminal trial.” For the issue of Indeed, required define we are not to against taint could not be resolved Iva parameters sur- President’s evidentiary hearing. nov without an Al power The limi- veillance under States, derman v. United and Ivanov v. inquiry simply this: ted nature of our States, supra, 165, United assuming power of the a constitutional 961, 176; S.Ct. Kolod L.Ed.2d v. President to ordered surveillance of have States, United 390 U.S. foreign agents permissi- in itwas (1968). Thus, L.Ed.2d I government, 605 of ble for the under § present posture “in must assume uti- the Communications ofAct to case,” this in we did In re Grand products of such in lize surveillance Jury Proceedings, Appeal of Sister prosecution criminal ? Egan, (3d 1971), 450 F.2d 199 Supreme as the in Court did Gelbard v. I so indicates That frame the States, United and United States v. plunge I into avoid the invitation to Egan, 408 U.S. 33 L. Amendment an evaluation Fourth government (1972), Ed.2d am mindful of considerations. I Justice intercepted communications and utilized [stop “to and] White’s admonition proceedings against ap them in the challenged intercep- quire whether pellant. illegal tion under the statute” rath- was “directly proceed guidance ap- er than constitu- I am not without adverting proaching to the tional issue without issue. specifically forcefully, should time-honored rule that courts ab- ruled Court has jure except language any where free from am- constitutional issues and in clear necessary complete biguity, before case was a decision Valley admissibility wiretap Ashwander Tennessee total bar them. agents 288, 346-348, Authority, 56 S. federal information obtained Interpret- prosecution. smuggling 482-483, Ct. L.Ed. 688 “ (concurring language, opinion).” statutory United . supra, being Court, person District ‘no authorized United States (3) Nothing chapter necessary contained in this measures as lie deems take such against protect Act of section 605 of the Communications the United States 1103; (48 605) shall force or Stat. 47 U.S.C. overthrow of the Government power against any means, limit of the Presi- constitutional other unlawful present danger dent necessary to take such measures as he deems to the structure or clear and protect against ac- the Nation The contents existence of the Government. potential intercept- tual or attack or other hostile acts wire or oral communication foreign power, by authority of a intelli- exer- obtain of the President ed gence foregoing powers information deemed essential be cise of the received security protect hearing, or to trial or other evidence security interception proceeding national information where such intelligence anything reasonable, activities. Nor shall and shall not otherwise used chapter except necessary imple- contained in this be deemed to as is limit or disclosed power. the constitutional ment President 622 foreign intelligence intercept communica- obtain sender shall information divulge publish security exis- tion and deemed essential to of the substance,' government contents,

tence, purport, prop- ef- United States.7 The intercepted fect, meaning erly of such observes that Article II vests the ” person,’ President, Executive, with re- communication to as Chief sponsibility said: the conduct na- tion’s affairs. phrase Taken face “no value accepted The district this con- person” comprehends agents, federal tention, solely purpose for the “any the ban on communication analysis, this I shall assume testimony person” bars to the content respect. not district court did err in this intercepted message. anof However, accepting this contention does States, 379, Nardone v. United 302 U.S. put the matter to rest. The issue 381, 275, 276, 58 82 314 S.Ct. L.Ed. central to this case not the constitu- (1937). power tional President conduct case, surveillances, second Nardone 308 U.S. such but it is the less so- 338, 266, (1939), phisticated admissibility 60 S.Ct. 84 L.Ed. 307 statutory prohi- the Court held prosecution. that the evidence a criminal evidentiary bition barred the use A review of authorities relied conversations, intercepted fruits of the upon government indicates that as well as the conversations themselves. important these cases failed make the Court continued the abso- congressional distinction between pronouncements lutism of its in review power to forbid the disclosure of inter- possession of a conviction for unlawful ceptions and the constitu- President’s spirits of alcoholic in Benanti v. United interceptions. tional to make 96, 100, 155, 355 U.S. 78 S.Ct. beyond question It is that the Presi- 157, (1957): 2 126 L.Ed.2d dent, Executive, possesses as Chief cer- The Nardone powers responsibilities decisions laid down tain which underlying premises upon dependent upon legis- specific which is subsequent grant based all Congress, consideration lative but derive Section 605. The crux those deci- from the Constitution itself.8 This o plain principle early sions is that words of the was announced as prohibition U.S.) statute (5 created a Marbury Madison, v. 1 Cranch any persons violating integrity 165-166, of 137, (1803): 2 60 L.Ed. system telephonic communication By the Constitution of the United and that evidence obtained violation the President is invested with States prohibition may not be used important political powers, certain (Empha- secure a conviction. federal the exercise he use his supplied.) sis discretion,' and own only is accountable political country to his in his government’s It is the contention that character, his own conscience. President, acting through the Attor- ney General, may constitutionally Belmont, 324, autho- United States v. U.S. 301 rize 758, 328, use electronic 759, surveillance L.Ed. 1134 57 S.Ct. 81 government suggests upon also, Chicago our Lines, reliance & Air See Southern Dellinger, United 103, States v. Corp., Crim. No. CR. 60 v. Inc. Waterman S. S. 333 U.S. (Memorandum Opinion 109, 431, 180 (1948) ; N.D. Ill. Febru 68 92 S.Ct. L.Ed. 568 ary 20, 1970) grounds, Curtiss-Wright Export reversed on other United States (7th 1972) ; Corp., 472 319-320, F.2d 340 Cir. United 299 U.S. 57 S.Ct. Clay, (5th 1970), (1936) ; 430 F.2d 165 re 81 L.Ed. 255 & Cafeteria Restau- grounds, versed on other McElroy, 403 91 U.S. rant Workers Union v. (1971) ; S.Ct. 886, 890, 29 L.Ed .2d 810 6 L.Ed.2d Hoffman, F.Supp. (1961) ; (D.D.C. States v. Debs, In re 1971) ; Enten, F.Supp. United States v. L.Ed. (D.D.C.1971) ; Brown, United States v. F.Supp. (E.D.La.1970).

623 (1937), meaning that “the conduct of for- intercepted held of such communica- eign by any person.” relations was committed the tion to (Emphasis sup- political departments plied.) emphasize Constitution I that the Act states government, propriety person the of the and “intercept that no shall com- of this divulge what power be done the exercise munication publish.” or judicial subject conjunction [is] “and” mandates the quiry or decision.” conclusion that two circumstances must occur for the bar of the statute to take beyond It cavil that Con- also first, effect: interception, and, the sec- gress regulate has ond, divulging publishing or of the reception in federal of evidence intercepted any person.” information “to recently demon- courts. This was Thus, Supreme Court has not con- signed S. strated when the President strued wiretapping this Act to make an 583 under which the Rules of Evidence Rather, offense in all instances. it is Magistrates, for United amend- States interception of the disclosure of civil and ments to the federal rules message contents of the which constitute procedure promulgated by criminal the crime. “Both acts are essential to 20, 1972, Court on November complete the offense.” United “except to will no force or effect have Coplon, 867, (D.D.C. F.Supp. they may the extent as be ex- ... 1950), grounds, reversed other 89 U. Congress.” pressly approved Act of S.App.D.C. 103, (1951). 191 F.2d 749 States, Sablowsky In F.2d v. United 183, (3d 1938), we said theory presidential Under the of the clearly Nardone “holds that Section 605 prerogative gather intelli- relating to the creates a rule of evidence gence information, it is never contended intercepted wire communi- admission that the President himself or his autho- divulged sought officers cations be performs officer, rized Cabinet the act of the of the courts United States interception. by special This is done interpretation United States. No “agents” given department of a of the phase placed upon can this be against Indeed, Executive Branch. decision.”10 It remains Nardone backdrop sophisticated interrela- for us determine whether it is con- tionships sprawling of a administrative sistent to that the President assume bureaucracy, required by complex- as right intercept and at the same government, ities of modern thousands time of the inter- hold that contents personnel Executive within the ception may divulged as evidence repre- Branch are often as considered prosecution. resolve a criminal To person sentatives of the Presi- language of the this we must turn to the Attorneys distinguished dent. Five statute. scholarship and re- General—with my purposes For the critical clause search at their and a consum- command per- provides: 605 is that which “no mate desire to the fruits of wire- utilize being prosecu- taps espionage son not the sender authorized as evidence intercept pre- shall communication and tions—concluded Section divulge publish existence, vented the of the evidence introduction tents, substance, effect, majority. purport, permitted which is now Oetjen Co., relying also See v. Central Leather settled on case law which has been (1918) ; 8, 1938, 62 L.Ed. 726 since December this circuit when Pink, court, speaking through Judge Biggs, United States v. 315 U.S. this (1942). provisions 86 L.Ed. 796 said: of the second and “[T]he upon fourth clauses of Section majority 10. The “§ state purport persons, their face relate all not, urges, inexorably does Aldisert regulation do not relate to the of communi- proposition statutory lead to the constitute cation carriers proscription divulgence therefore represented purest rule evidence sense." Sa- evidentiary rule,” creating thus the infer- blowsky supra, States, urging theory v. United 101 F.2d ence I am a new in contrary emphasis.] [My Quite court. is true. I am at 189. representatives intelligence operations of three official to conduct in or- Truman, protect security Eisen- Presidents —Presidents der to of the nation. legisla- hower, Kennedy Totten v. —introduced actively tion beseeched to L.Ed. 605 President govern- Roosevelt, amend so that this statute in a confidential memoran- intercep- ment Attorney could utilize the fruits of dum to Robert General H. espionage recognized tion in ing necessity cases and cases involv- Jackson of security. They uniformly wiretapping “involving national in matters represented that what the Act of of the defense Nation.” President Tru- divulgenee expressly of expressly was the approved practice forbade man as by interception, Attorneys the information received have all General since 1940. problem that was not so much Secretary When of William P. State divulging interception, of act but the Rogers Deputy Attorney was he General in- court of that was learned from which perceptive wrote a which com- article terception. analysis supports my pletely there Attorney Former General Herbert is a basic distinction under 605 be- pas- Brownell, Jr., right intercept observed after tween the right and the sage Act, of interceptions “[t]he the 1934 to use as evidence. intercep- Rogers, soon arose as to whether mere Tapping” “The Case for Wire by agents messages of was tion federal (1954): long 63 Yale L.J. 792 “It has by Attorney position Department forbidden The Section been the of took the view that General at that time interception Justice that mere phone of tele- prohibited inter- what law was both prohibited not communications is ception divulgenee, by and that mere federal law.” 63 Yale L.J. at 793. message report intercepted Rogers long struggle Mr. outlined the of public by Attorneys FBI or other federal Congress officials persuade General to divulgenee. agents legislation did not constitute permit to enact the intro- the decisions [Nar- None of intercepted duction into evidence of com- by Supreme Court rendered municipations prosecutions. done] in criminal tapping by offi- “Attorney held that federal wire General J. Howard McGrath illegal, absent cers in and divulgenee.” Brownell, tap legislation of itself submitted wire for intro- Security Congress. “Public doing duction so, the 82d L.Q. 195, Tapping,” repeated and Wire Cornell plea he At- [a former] 197, (1954).11 torney General Clark and indicated that legislation prose- such would ‘enable the President, both as Command- “[T]he present, futuré, past cution of viola- organ er-in-Chief and as Nation’s endangering laws tions of security, our internal affairs, in- for has available not barred the statute of telligence reports are whose services limitations, go which would otherwise ought published to not and not to be unpunished to the detriment the Na- Chicago Air the world.” & Southern ” tion.’ 63 Yale L.J. at 795. Corp., Lines, Inc. v. Waterman S. S. supra, Rogers Attorney states that Gen- Mr. (1948). inability 92 L.Ed. 568 eral reaffirmed McGrath growing sophistication statutory complexity department “its his fulfill reeog- society duty prosecuting,” Attorney of modern have led to the techniques complained sophisticated nitition required are Herbert General Brownell gathering intelligence legisla- wiretap in- that without security prosecuting formation national where tion “the hands of officers early volved. As as tied their efforts maintain recognized presidential security the Nation are thwart- 11. The prohibiting debate on the Act of Communications missible evidence or about tapping.” Cong.Rec. did not discuss 605. Mr. Brownell wire See reports: 8822-8837, 8842-8854, word is mak- “Not one said about 10304-10332 ing tapping evidence obtained wire inad- n. L.Q. Cornell 12 “Again, 17, 1953, Why say existing on November

ed.” Attorney do I situation unsatisfactory? Brownell advised General congressional committee that the work existing wiretap- federal law on Department clearly of Justice has ping is Section the Communica- legislation shown the need which provides tions Act of part: permit tap would the use wire evi espionage dence cases. He advised person being “. . .no au- pres espionage there are cases thorized the sender shall inter- ently Department in the but Justice cept any divulge communication and important evi that since some publish existence, contents, tapping, dence was obtained wire substance, purport, effect, or mean- brought such to trial cases could intercepted of such communica- long so law remains ” any person tion to . . . present state.” 63 Yale L.J. at 796. (Emphasis supplied.) Significantly, unsatisfactory This law is in two respects. Rog permits anyone It explicitly tap “law” referred to to Mr. interception Attorney wires. Mere ers and General Brownell is not a crime; a is the instruction in Nardone crime contained committed until intercepted eases, amplified by the vulged Weiss v. United information is di- published. (Another provi- 269, or L. (1939), applying sion makes it a crime Ed. 298 the doctrine to to use such in- benefit.) formation for one’s intrastate as well as interstate communi own 5, 6, and 7. cations. 62 Yale 793 nn. L.J. intercept- Thus even if we find an Attorneys The efforts various telephone line, device to attached pas- came to fruition with doing General and find out who is the inter- sage of Title III of the Omnibus Crime cepting, prosecute. cannot we still We Act of Control Safe Streets have find that the information was supra. present wire- divulged Unlike published improp- or or used tap 2511(3), statute, note erly. priva- U.S.C. § This no means that one’s supra, provision providing contains a cy protected. Anyone adequately is evidentiary intercepted use of com- your telephone in can listen sations, conver- any wire violating munications : “The contents of mine, without intercepted by or oral communication the federal law. authority in the exer- of the President divulgence hand, other all On the is pow- cise of . . . [his constitutional] prohibited. This means that any in ers be received in evidence the law law enforcement ”13 hearing. trial . . . to disclose in court officials Kennedy Attorney F. they wiretapping General Robert words overhear from testifying Congress May purport, before substance, or the effect support though they in dramati- H.R. those words—even what cally pin-pointed in the deficiencies overhear clear a vicious evidence of 605: crime. May 7, 1953, Speaker appear 12. Letter of 605 does not to inhibit Section conducting fully Representatives Chief Executive from the House of and the Vice necessary operations within framework President, transmitting wiretap legislative Branch, Executive than the use proposal. prosecutions. Thus, in in the evidence bar, Pavlov, the case Gleb Yuri Romash- emphasize again

13. I I do not meet Olenev, in, and Vladimir who were named as constitutional issue of the President’s co-conspirators but not defendants in the in- under III Title of the Act of wire- 1968 to dictments, representatives accredited tap gather without a court order the Permanent Mission of the Union of Soviet intelligence information, re- Republics Socialist Nations. served in United They personna grata United States non were declared Court, supra. departed District the United States. pressing fight against organ- held Court so with re- spect to federal officers the Nar- ized crime.

Rehnquist national Hearings on 92nd (Emphasis supplied.) protecting but law enforcement officials cannot dent Truman’s Attorney Attorney Attorney wiretapping this federal law a As a 1940, President Roosevelt authorized use tions for society of leads which that conversation done stance held with forcement, even for the most serious crimes. ment or free to used but deed, the the Benanti ceive in passage Senate Committee Wiretapping wiretapping effectively Cong., effectively by case, security result, strange paradox listen and Lewis evidence obtained as a result the states evidence, General General Jackson federal courts General of the bill was needed for respect decided Nominations William H. the national 1st case, in national major intercepted conversation, in to most wiretapping cases: is an concurrence, Sess., decided Kennedy private to state officers telephone Clark, crimes. improper motives, to aid F. Powell on the important at 145 federal security is that under security. refuse individual is with Presi- stated that cannot be Judiciary, And it conversa- extended viction were not within the mandate for approve law govern- protect Before publishing tool in cases. gave. sub- en- In- re- In so with the Ibid., tention tion. tercepted of the Executive Branch would have rogative of the Chief Executive to inter- been tion. hold that to the district court for reconsideration would cept, sumed under strictures of Ivanov’s conversations sis. that which was district court erred in I am thorized disclosure of atomic dition, subversive activities and unau- tapping information; evidence in court for the On the federal offenses: rity: Espionage, sabotage, treason, se- accordance with the H.R. 10185 would Crimes ^{[*] [*]} the doctrine of Nardone contrary at 146-147. I would remand these In this agree presidential power additional that persuaded, therefore, right assuming material present X- X- the contents of the affecting with the context to the introduction X- -X- intercepted. state of the (Emphasis supplied.) “divulge beyond a constitutional § any statutory prohibi- government’s X- ^[*] following 605, divulging foregoing equating overhearings authorize national use the confines -X- ^[*] proceedings following prevents, intercept intercep- record I would publish” his con- wiretap the in- energy an as- analy- X- X- wire- secu- con- pre- I kidnapping this authorization to cases. disclosure of “electronic surveillance each As has been advised might have violated defendants year-,by of the Federal the Director rights Fourth Amendment and tainted Investigation, practice Bureau of their convictions.” in a limited number of has continued Judge joins Van opin- Dusen in this upon permission express cases ion. But, Attorney I as have General. out, pointed GIBBONS, Judge received the evidence (dissenting Circuit wiretaps developed part). from in from these resulting wiretaps

leads from these I concur in the court’s determination cannot in court. It used be that the district court did not err in situation receive infor- anomalous concluding that the evidence used at Iva- yet crime and not mation a heinous trial nov’s tainted fruit be that information able use anything heard in the electronic surveil- court. lances the pre- contents of which are And, applies course, logs. served in the first set of I dissent espionage majority’s and treason cases of but from the conclusion that the Obviously Congress thought electronic surveil- fruits of the as much tainted pre- when amended the contents of which it lances enactment § logs 2511(3) were ad- served the second set Crime § Omnibus trial Control and at his because inter- Streets Act of missible Safe agree 2511(3). ceptions reading requires I were lawful. While U.S.C. This § Judge says in that I much that Aldisert confront the constitutional with limita- congressional respect power postulated tion opinion part with III of his by Judge find it difficult to ac- 47 U.S.C. I Adams as reason for his in- § separates cept terpretation. the construction which He writes: against interception prohibition intimate, time, We do not at this prohibition from the disclosure proper view whatsoever as to the reso- mere the latter as a which treats possible lution of clash Judge agree rule of evidence. I powers stitutional of the President applies to the Adams if the statute Congress. Instead, merely we functioning in the field of for- executive legislative note that the absence of eign intelligence by plain lan- affairs sug- consideration of the issue does interception guage, prohibits both gest Congress may not have suggests analysis disclosure. His tended 605 to reach situation § prohibits if it from inter- executive presented present in the case. cepting foreign intelligence, it affairs leg- absence of indication that the beyond Congress. be possible islators considered effect making adopts Thus he a construction field, affairs § inapplicable when executive § lightly we should not ascribe to Con- functioning foreign af- in the field of gress an intent 605 should intelligence. fairs That construction is reach electronic surveillance conducted as strained as Aldisert’s construc- by the President in his furtherance of tion. responsibilities. affairs This important We . . . would the fact seem to far face too plain subject anyone, justify unsupport- words 605 forbid resort to sender, assumptions. Majority ed Opinion unless authorized to in tercept telephone message, and di 601. language equally rect in clear that “no suggests, words, He in other that had it person” divulge publish shall the thought problem Congress would message per “any or its substance to recognized have that there is an execu- States, son.” Nardone v. United prerogative foreign tive in the field of 379, 275, 276, U.S. L. S.Ct. intelligence affairs which is constitu- Ed. 314 tionally beyond power.1 Thus, its he may reasons, we write into an ex- § Judge difficulty Learned Hand had no ception which not is there. I have no understanding plain language of the § power it doubt that was well the within Coplon, 605 when in United States v. forbid, did, of cert, to as the it (2d 1950), 185 F.2d de- agents intercept- of the executive from nied, 96 L. electronic for communications (1952), applied Ed. he to inter- purpose, including foreign affairs intel- ceptions foreign intelligence. for affairs ligence. only The limitation on that it, by Nor do I. As I read statute power pow- that occurs to me is veto plain language applied at the time of er of the President. interceptions every- to here issue including agents Judge interpretation one the President’s Adams’ of § gathering foreign intelligence. exempting foreign affairs as the executive’s af- expressly supra, (5th 1773), explains 1. Nardone v. United land 261 ed. which rejected any general governmental preroga king by any parlia- “the is not bound act of exemption ment, by special tive at 605. unless he be named therein Compare particular 58 S.Ct. 275. with W. Black words.” stone, Eng- Commentaries on the Laws of safeguards agents re- intelligence constitutional him inevi- other leads fairs explicit rejection. quires tably to the an as extent to a decision applies to amendment the fourth which of reasonable- review Judicial agents. while He concludes that such warrant, of the need for a ness but even ap- theoretically the fourth amendment plies, according majority, is limited agents as to of those the decisions solely that the inva- to a determination privacy of is a reasonable invasion what purpose privacy sion of scope judicial beyond a matter is intelligence. foreign extent The affairs appropriate That in an case. review judicial isolated of the activities judicial limits conclusion majority may appre- be review premised power of the United States involving example wire- ciated an prerogative upon the same executive nothing Today more tapping. be would exception led him to find an which foreign affairs conduct of vital appar- prerogative’s 605 because knowledge which about than accurate congressional power. upon limitation ent grain with what touch dealers power of the I have no about the do.ubt compa- foreign purchasers, oil or which subject III the activi- article courts receiving supplies from what nies were foreign execu- States of the ties pursuit If in sources. intelligence agents foreign tive’s affairs agents bur- information the executive judicial compliance review for glarized international of an the offices appropriate in an the fourth amendment grain oil com- an international dealer or case, since on case. This is such a warrant, pany the benefit without present must assume that record we evidence of a violation and found asking executive an article III court Act, obtain- Antitrust evidence Sherman evidentiary in- to make use could, burglary ma- under the ed in the of an dicted defendant of the fruits jority interpretation fourth prohibited privacy vasion prose- amendment, in criminal used be amendment. 1-3, cution under 15 U.S.C. §§ deter- limited to a court’s role would be necessity Reinforcing my belief burglary was aimed mination that separate expression of views is for a foreign policy positions states “the at dissenting Aldisert’s fact range of is- on a broad international position opinion tacitly supports the Majority Opinion sues.” prerogative in is an executive there intelligence pre majority’s executive awesome the field of affairs rogative gathering beyond affairs reach of those way intelligence in the text in one cannot be found checks and balances which majori Indeed, every limit the Constitution. another acknowledges government.2 ty opinion out A doctrine so as much its central gov- gingerly keeping of institutions of rather embrace United of with our dangerous Curtiss-Wright Export Corp., ernment, potentially v. so States rights 304, 216, privacy fourth of secured 57 S.Ct. L.Ed. U.S. capable by paying lip amendment, (1936), extension of and so and service 622-623, Judge writes, discretion, which he is use his own Aldisert President, country beyond that It is ia to his in his accountable Executive, possesses pow- political character, certain as his own con- Chief responsibilities are not de- ers and which science. legislative grant upon specific pendent Belmont, 324, a v. United States Congress, 758, 760, but derive from the Con- from 81 L.Ed. principle (1937), foreign an- stitution itself. This held that “the conduct of Madison, early Marbury as nounced relations was committed the Constitu- (5 U.S.) 137, 165-166, political departments 2 L.Ed. 60 Cranch tion to the of (1803) government, propriety : and the of what By power the Constitution of the United States be done the exercise of this subject judicial inquiry certain im- the President -is invested with [is] not or deci- political portant powers, (footnotes omitted). in the exercise of sion.” general applicability placed intelligence gathering fourth agency, an holding Intelligence amendment. But on the Group, the Central issue, fourth amendment that the execu- had been created Executive Order. department’s S.Rep.No.239, tive decision on reasonable- Cong., See 80th 1st Sess. beyond privacy (reprinted ness the invasion of is Cong. in U.S.Code judicial scope review, the & Ad.News 1494 These statutes suggestion literally ap- that if security do not deal § with internal and in might plied, beyond power present agency form exclude the Congress, necessarily predicated are 403(d)(3). area. 50 U.S.C. § foreign upon They congressional affairs existence assume to deal prerogative im- intelligence executive either gathering is for external plied security. from the Constitution or extracon- They were after enacted stitutional. While footnote interpreted ap- Nardone 605 to § acknowledges scholarship Adams ply agents recent to federal ex- after its casting upon Justice press general governmen- Sutherland’s rejection doubt of a foreign thesis of extraconstitutional prerogative exemption tal 605.3 § acceptance prerogative affairs Congress was aware the Nardone Supreme Court, opinion his assumes terpretation of 605 when it dealt with very prerogative at the least that such security external in the Central Intelli- implied is gence from the Constitution. Agency Act. While the statutes assumption result is that governing what is Intelligence Agen- the Central privacy a “reasonable” invasion cy comprehensive regulating are less foreign purpose of affairs intelli- the extraterritorial activities execu- gence subject congressional neither to foreign intelligence agents tive affairs judicial control nor to review. many thoughtful While persons might than logically the result follows for, from the as- hope doubt, hope I no have I premise, sumed reasons which doubt, no reject premise. follow I congressional competence well within place greater upon limits even those going reasons, Before to those consid- That, however, activities.4 is not the is- things er some not involved in this case. dealing in this we sue case. Here are Since both 605 and the fourth amend- intelligence agents with activities of operate only territory ment within the within the United Another mat- States. of the United we here any pre- ter not involved in this case is concerned with the activities of the exec- preroga- tense that there is an executive foreign intelligence utive’s affairs beyond congressional ju- tive agents operating control or territory. outside that dicial review in secu- matters of internal intelligence gathering But rity. pretense That ended with United provide activities the executive use- example States negating any congressional States District Court ful Michigan, for the Eastern District belief even outside the United L.Ed.2d has a President af- (1972). According intelligence prerogative fairs free from congressional position, Court a President in Lincoln’s control. In the National insurrection, faced with an internal re- Security ofAct ch. 61 Stat. subject judicial mains review of his Intelligence Agency and the Central agents’ compliance with the fourth 1949, 227, 208, Act of ch. 63 Stat. Con- according gress amendment. But to the ma- regulation enacted a scheme of of jority, peace-time de- President can foreign the of activities intelli- affairs cide, congressional gence agents. free of either control See 50 U.S.C. 401-412. §§ congressional judicial review, pri- or invasions of creation of the what Cen- Intelligence Agency tral actually vacy dis- in the interest of his reasonable supra. 3. Agreements See note Congress, —Transmission 403, Resolution, (1972) War Pub.L. No. 86 Stat. Powers Pub.L. No. Of. 92— 93-148, (1973) ; (codified 112b). 87 Stat. 555 International 1at U.S.C. exceeding imprisonment foreign not two The con- affairs. conduct trasting congressional judicial years, or treat- both. involved of these two matters not

ment conspiracy indicted for Curtiss-Wright, gathering intelligence out- in the statute, quash case— to violate that moved to intelligence States, and side the United ground on the indictment the security gathering purposes for internal Congress legis had too much in assumed majori- anomaly of —illustrate lating upon subject foreign af ty’s position. constitutional fairs, ground but on that it had in § only analytical support for the delegated too much to the executive’s position majority is an execu- that there problem presented discretion. The foreign prerogative in field of tive get was how out intelligence beyond the reach affairs from paint which it corner into had judicial congressional review control or Refining ed itself in Panama v. Co. opinion in United is Justice Sutherland’s Ryan, 388, 241, U.S. S.Ct. 79 L. Curtiss-Wright Export Corp., v. States Poultry Ed. 446 and Schechter sweeping supra. some its lan- While Corp. 495, v. United U.S. guage support, lend hold- does such 837, (1935). S.Ct. 79 L.Ed. 1570 Those holding ing does not.5 Its involved cases, largely repudiated, since had held gressional foreign action in field of enacting legislation domestic affairs; namely constitutionality of delegate legislative could not May the Joint Resolution of ch. powers. only legislate It could in the (1934), pro- 48 Stat. 811 Constitution, manner set forth in the be vided : cause the Constitution was a limited ., Resolved if . . That sovereignty surrender states. prohibition get President finds that To around Panama and Schechter sale of of war arms and munitions Justice Sutherland concluded that while in the countries United States those powers gov the domestic of the federal engaged now conflict in the armed ernment ceded to it from the may contribute to the reestab- Chaco states, foreign it derived its affairs peace between those coun- powers lishment directly George from Fed III. tries, and if after consultation with foreign ple eral over affairs was governments of other American nary rather than derivative. Con Thus Republics cooperation, gress and with their foreign could in the affairs field govern- well as that as of such delegation make a to the executive which necessary, ments as he he deem in the domestic field would be unconsti proclamation effect, makes to that Lofgren tutional. amply Professor sell, except be unlawful under shall demonstrated line of descent exceptions such limitations and as George govern III federal any or mu- prescribes, President arms ment of 1934 was nowhere near di any place in the nitions of war in suggested. rect as Justice Sutherland en- to the countries now States Lofgren, United States Curtiss- v. gaged conflict, in that armed or to Wright Corporation: An Historical acting person, company, or association Reassessment, Yale L.J. 1 country, un- interest of either can, however, present We accept purposes til otherwise the President ordered proposition that federal sov Congress. byor ereignty over affairs is Sec. arms entirely magnitude Whoever sells order different munitions of in violation sec- war than over domestic But it is affairs. shall, conviction, punished thing say tion 1 by govern one that the federal exceeding $10,000 a fine not ment succeeded to the affairs Curtiss-Wright Corp., 5. “United act under and in accord with an Act of Con- gress.” 216, 218, Youngstown [57 81 L.Ed. & Steel Tube Co. 255,] involved, Sawyer, the Presi- n. congressional 870, (Jackson, to act J., dent’s without 96 L.Ed. 1153 authority, right curring) but of his . Congress George prerogatives quite In It is 1774 the Continental of III. say prerogatives took the came into existence and soon those another legislative George George passed assembly. form of a from III to national have legislative Washington Its as- and in unbroken succession status as a national sembly granting July 4, was de until 1776. to Richard Nixon. Even facto foreign powers period de Conti- affairs of the federal facto the First Congress government plenary tacitly de are rather than nental assumed England states, colonies in union rivative both the text of were still history seeking nothing and the of its and do- Constitution were more than adoption powers See, g., make clear that those mestic law reform. e. Declara- subject are same kinds of checks tion First Continen- Resolves of the powers Congress, 14, all of tal and balances as are in 1 Jour- October government.5a Congress (W. the national of the nals Continental 1904). Lexing- C. Ford ed. The battle of Independ- Prior to the Declaration of necessity April on intro- 1775 of .ton competence in ence the colonies had no duced a new element into delibera- foreign field a mat- affairs. That Congress. tions of the Cóntinental Actual sovereignty. Eng- English ter of Under put legislative war that one of the branch foreign public lish law the conduct of af- government inevitably po- national in a fairs was entrusted to the executive sition, in which the British Parliament than shared with Parliament. rather foreign been, conducting had never Blaekstone’s on the Laws Commentaries See, g., e. affairs. Address of the Con- England, completed in 1769 and well Congress tinental the Inhabitants of founding fathers, contains known to the Canada, May 29, in 2 Journals 1775 Congress English exposition an extensive of the (W. the Continental C. public private as well as law. Matters 1905). Ford ed. On June 1776 Rich- today which we-would include Henry tripartite ard Lee introduced general categories foreign affairs (1) calling independence resolution for chap- security external dealt with calling Colonies, (2) for the United for book, ter first entitled seventh forming of effective measures for the “Of PREROGATIVE.” KING’S foreign alliances, (3) calling five external6 Blackstone lists five preparation plan aof of confederation. prerogatives.7 to all domestic Reference Independence, Resolution June prerogatives appears in of these some 1776, in 5 Journals of Continental form another in later American con- 1906). (W. Ford ed. C. stitutional documents. As Blackstone produced The first resolution the Decla- Eng- clear,8 contemporary makes and as Independence ration practice confirms,9 lish constitutional explicitly United Colonies assumed sov- king’s prerogative these matters of the ereignty affairs.10 The third personal king, but produced resolution the Articles of Con- government. executive branch of federation, approved by Congress on No- government could be removed finally vember ratified on king’s Parliament, but it exercised the Foreign affairs authori- March 1781. prerogative office, while it continued ty was conferred article IX on the parliamentary free from interference. I Congress. That the framers of the Ar- specifics king’s will return to the dealing prerogatives ticles Confederation were listed hereaf- Blackstone authority ter. with the same affairs E.g., analysis thorough relevant 8. id. 5 a. See the 333-35. Separation Bestor, materials historical Foreign Phillips, Affairs: Domain Powers 9. & Constitutional E. Wade G. See Historical (6th 1960). Intent the Constitution ed. 173-74 Law Examined, ly Hall L.Rev. 5 Seton ) (1974 . have . . . Colonies “[T]hese 10. Blackstone, Commentaries Peace, War, 1 W. levy 6. conclude Power full 1773). (5th ed. England 253-61 Declara- .” Laws . . . Alliances Contract July 4, Independence, tion of at 261-80. Id. king’s preroga- present was a matter distributed by Blackstone, Constitution, tive described can be seen a com- parison authority affairs same three texts. then, right aware, tions must have been well The twelve references deliberately tex- the new constitution contain all the hand column above legislative formerly those even distributed in the Constitution tual references among powers bearing arguably upon the three the existence branches subjecting thereby government, prerogative federal matter an executive system security. them bal- checks and and external affairs column, ances that was the central core of the middle ev- As ery be seen in the can compromise. legisla- What came back matter of one of them was a ratifying was a se- conventions prerogative Con- tive gress. in the Continental rights proposals every ries of for a bill of one of them And almost power prerogative would of in which limit the entire was a matter of executive including government, Significance the central must be Colonial times. at- foreign power pow- in matters of affairs and of these tached to the distribution security. of external That the bill The ers in the Constitution of 1787. rights significant exempt can be aspect did not these areas of most the distribu- only seen from the fact second tion there two instances is that are upon imposed a limitation amendment congressional in which framers resorted to I, powers under article British One model of the Constitution. I, granting II, clause section the Pres- section 10,- article is article section 3 seen, moreover, power clause It can be receive ambas- ident alone the public in The the third amendment: and other ministers. sadors II,' 2, clause 1 other is article section peace shall, of be in time No Soldier making commander-in- the President quartered house, any without every navy. army of the chief Owner, of of the nor in time consent prerogatives of other instance the former prescribed war, in manner but to be Congress re- Continental either by law. legislature di- tained for the national why suggests me No reason itself to among separate vided of branches considered fourth amendment should be government. the Ar- the national That applicable affairs or ticles of Confederation and Constitu- govern- powers external of the central dealing tion with the same of 1787 were ment in manner lesser or different security foreign affairs and external powers. than to all its other gleaned by subject matters be comparison virtually re- identical prerogatives in for- American Since governments upon placed strictions state eign security start- affairs external Articles of Confed- article VI of the legislative provisions powers, ed as I, and article clause 3 eration section transferring powers some those of the Constitution.11 me, should, seems executive ratifying narrowly expansive- must have The conventions than be read rather ly. times been well in Colonial commander- aware I cannot read into the security external affairs and in-chief clause and ing clause authoriz- prerogative (but not, were matters of executive the President to receive Congress had first assumed that the without the advice and consent granted general powers send) Senate, and then these been ambassadors ratifying authority totality. exemption congressional conven- their place powers. opinion appropriate defining 11. An Executive Some of prerogatives Legislative all the evidence from the debates these were of a set forth rejection Among & of the British nature. others of war the Convention of power. peace Farrand, executive The remarks & c.” 1 Records of model of Pennsylvania, later Jus- the Federal Convention 65-66 James Wilson sufficiently Supreme Court, (Madison’s notes). tice of the typical. quotes pre- clear, him: Madison As the text makes Wilson’s view Prerogatives “He vailed in the did not consider Convention. proper guide in the British monarch as a upon the manner in which for- executive in the field of for- interfere eign intelligence gath- intelligence congressional eign affairs be affairs shall judi- Thus I have and consultation States. initiative and of ered restoring could, review, did cial without the alter- no including 605, prohibit anyone, accountability native for- to the current in § legislature. intelligence majority eign agents, If we must affairs interpretations wiretapping. majority If a our constitutional exchange accept times, that construction of move with the let us not were to inquiry political process this more for less. could end Our al- we our change leaving sepa- point, another case the lows for a the executive only operation quadrennially. branch of the fourth amendment As a substi- rate agents. majority contemporaneous political tute for ac- such Because the countability provides of the court does not so construe Constitution upon the fourth executive can act individu- amendment issue must be de- through judicial power als cided. Any the United time the federal States. must, course, The Constitution proposes executive to exercise a criminal living construed as a document. Per- sanction an individual it must haps telephone had the been invented in judicial submit to review of its actions rights bill of would have dealt regular regular in a in man- explicitly, quar- with it as it dealt with parte Milligan, (4 ner. Ex 71 U.S. tering of soldiers and searches of hous- Wall.) 2, (1866). In such L.Ed. today But while the must es. document court, a de- when defendant asserts light upon be in construed of the events fensively acting agents, that federal for brought contemporaneously which is it foreign intelligence purpose or a affairs glare bear, contemporaneous any purpose, violated the for clearly should not blind us intend- amendment, fourth inde- court must meaning Perhaps ed of in the text. pendently determine whether the chal- light contemporary pow- of international lenged complied action with the amend- relationships er the executive should be It in ment. cannot defer that decision pre- reinvested affairs part whole or in to the executive rogatives George subject only III, of more than can defer of the it the trial upon removal loss of confidence a military action to a commission. legislative majority. That could be ac- government urges complished by the rea a constitutional amend- ment, procedure founding privacy sons for of for invasions exter a fathers provided security purposes quite judiciary pow- nal are different But the for. provide upon accountability from those relied erless to enforcement legislature this, of the criminal it which in the law. From British Con- system urged, require kind of a stitution substitutes for our of warrant dispersal power by impracticable. ment would be For this of virtue of checks urges judi imposed by independent post-invasion and balances reason it government. majority cial I branches review should also be denied. see inpracticability.12 opinion no such It would be removes the checks balances and Carefully tive and administrative standards for con circumscribed relaxation probable ducting inspection an of the area which traditional fourth amendment cause response dwelling is located. The observed standards reasonableness inspections personal strong governmental public that such neither needs is not a discovery Supreme aimed of evidence of When nature nor novel task for Court. they relatively municipal fire, crime, a a and thus involve confronted with the need for privacy. inspections, safety v. Mu limited invasion of Camara health the Court nicipal Court, a 387 U.S. 87 S.Ct. sanctioned issuance of warrants without City (1967) ; probable particular showing 18 L.Ed.2d 930 See Seat cause that tle, violation, dwelling 18 L.Ed.2d rather 387 U.S. contained but “stop only upon legisla- and frisk” In the cases. satisfaction of reasonable persons tirely protect fanciful, from in perfectly for the feasible possible develop privacy vasions of criteria as to when re for the courts to lationship sought privacy pur for the information when an invasion of legitimate gathering foreign pose affairs intelli affairs concern is en tirely gence persons fanciful, protect permitted. In Camara should be legitimate Municipal Court, invasions far in excess of the S. (1967), need. for ex Ct. 18 L.Ed.2d ample, law enforcement criminal are, course, invasions There probable specific was not at stake and privacy which is clear the zone of determinable, yet was not cause sought likely pierced highly to be will be develop spe Court was able produce significant information, but privacy could cial criteria be for when legitimately no court could order. search. invaded for an administrative include, example, These violations of formidable It The task is no here. more public entry law the international perfectly would be applications feasible to centralize No some instances embassies. doubt in a for such warrants cen operating principle the executive on a Washington court at in a limited tral necessity public will violate international number of courts to minimize secu so law, well, and the fourth amendment as rity problems. permit The criteria by making invasion such an without a ting priva court authorized invasions Probably political process warrant. security cy in external need the name of upon is the effective limitation applicable to those be identical to perceived such necessities. But if act- criminal law Nor need the enforcement. necessity principle on some emergency exceptions criteria for invasion, executive such commits In each the intrusions identical. forego then he must either the assist- upon less than traditional notions of ance of the in criminal courts law en- probable Supreme cause Court which forcement judicial scope or submit full suggested emphasis approved,13 review that fourth amend- placed has been limited nature requires. by causing ment cannot He might ap the invasion. a warrant Thus the courts to use the fruits of viola- his propriately issue the invasion when was public tion of international law and of eavesdropping for for rather than a the fourth amendment make them his physical trespato seizure intrusive anor accomplice majority after the fact. The ry search. But at a minimum the crite reacts: persons protect ria chosen should from if, “It would be unfortunate indeed as privacy possible when invasions of their Judge Gibbons suggest, seems to relationship source of illegally President per- must act intelligence

affairs form Yet, information is en his duties. if constitutional again jus balancing warrant, used a test vides sufficient time obtain a tify investigatory stop carefully urged justifications. an and a all as Davis v. Missis- weapons by police sippi, 721, 1394, limited search offi 394 U.S. 89 S.Ct. 22 L.Ed. probable (1969). situations, cer on cause. 2d less than Adams v. 676 In each of these Williams, 143, 1921, compelling public when U.S. S.Ct. L. confronted with a Terry Ohio, personal ; privacy, Ed .2d 612 need to U.S. invade tlie Court 1, (1968). classify 1868, challenged did 88 S.Ct. L.Ed.2d 889 not choose to suggested scope judicial The Court lias that deten duct as also outside tlie review purpose fingerprinting, judicial but tions for the rather sole chose to maintain control may narrowly circumstances, necessary by devising over these under defined activities specially “comply “probable require- Amendment even with the Fourth tailored cause” though probable ments. there is cause the tra no in ditional sense.” The much less serious supra. 13. See cases cited in note 12 See security, upon personal trusion the need to Biswell, 311, also United States v. 406 U.S. only once, reliability the inherent be detained 1593, (1972) ; 92 S.Ct. 32 L.Ed.2d 87 Colon- opportunity abuse, Catering and the Corp. States, and reduced nade v. United nondestructibility fingerprints pro- (1970). which 25 L.Ed.2d secretly if the President must act determine information ob- investigate “arguably quickly attempt tained in an the surveillance was foreign agent Only important in- relevant” to obtain conviction. Ivanov’s telligence information, finding such a result if the district court made a “arguable relevancy” govern- follow under would Gibbons’ analysis.” required Majority Opinion ment to disclose surveil- lance at- records to the defendant his gross my posi- This is as distortion of torney. majority reject- A of the Court tion as it of the Constitution. The ed that result and ruled: majority expressly refrains from deter- Although mining may appear emergency a modest there whether was might proposal, especially hasty the standard need for action since which have “arguable” necessity for disclosure excused would be for a warrant —a relevance, ordinarily we conclude that surveil- matter the Court decides— any petition- expressly deciding lance as to records refrains standing overwhelming object er has whether there was an should be being secrecy turned over to him need for in this It de- without instance. subject judge. screened in fers to the camera executive. I would trial judicial Alderman v. United President’s decision to re- agents view. In most instances his L.Ed.2d could obtain a warrant. some forego stances the decision to a warrant complied Thereafter the district court exigent

because of time circumstances with the Court’s mandate with approved by would be courts. respect to what we have referred to only instance where executive action logs. the first set of But because it con- approved by could not be the courts logs cluded that the second set of re- exigent would be there where were no legal surveillances, flected it did al- circumstances or where no could inspection low of these. While case legally have issued a warrant. The ma- pending Congress enacted Section jority finds a constitutional Presidential Organized 702 of the Crime Control Act duty act, nevertheless, in violation of 91-452, Pub.L. No. 84 Stat. 935 public international law (codified 3504). at 18 U.S.C. That fourth amendment. If there is such a provides: statute duty imposed by it is not the Constitu- (a) any hearing, trial, In response tion. If the President in acts proceeding any in or before court perceives higher- what to he to be some duty he must be vindicated elsewhere (2) for disclosure information than in the III article courts. a if determination is in- evidence present stage On the record at this we pri- because it the admissible is do not know whether of the fruits mary product an act unlawful of the second set of surveillances was occurring prior 1968, 19, to June used at the trial. Since I would hold or because it was obtained the that those surveillances violated both § exploitation of an act unlawful 605 and amendment, the fourth I am occurring prior 1968, 19, to June problem confronted with a that both required shall not be unless such Judge opinion Adams’ Aldi- may information be a relevant to opinion unnecessary sert’s find dis- to pending claim of such inadmissi- problem any, cuss. effect, That is the if ; bility . . . in this case of 18 U.S.C. 3504. When § Supreme Court, was 3504(a) (2) case before the adopts, Thus § unlawful prior government interceptions the the contended that sur- which occurred to veillance position records should first be submit- June the advanced government judge, ted to rejected the trial in an ex who the Su- parte proceeding preme in camera would first Court in this ease trial Bridge judge may parte Supreme an make ex camera mont was a case relevancy.14 original jurisdiction. Section entered determination Court’s It dismantling directing injunction an No. makes 703 3504(a) Pub.L. 91-452 bridge applicable proceed- “to of a all across the river Ohio regardless navigable ings, commenced, of when obstruction a oc- stream. Be- curring Congress fore the decree after date its enactment was carried out passed bridges Congress Thus a statute “[t]hat [October 1970].” 3504(a)(2) apply proceed- across hereby . tended the Ohio River . . to to ings occurring declared to lawful this case after be structures October. present positions elevations, I their would de- 1970. Since remand be, respect shall be so held taken termination taint to with anything records, in the law or second it laws Unit set of surveillance is contrary ed ing.” necessary States also notwithstand decide that de- whether (18 How.) compli- 59 U.S. at termination should made Congress compliance determined that had the with or in ance the statute Court pass constitutional Supreme per a law with the mandate. Court’s mitting bridge navigable a across a statute Absent the it clear a injunction. stream. It vacated the lower court must follow the law the recognizes Supreme case that the Supreme case announced Court. apply changing will a law law E.g., Haley, pending case in a case before it. (1962); L.Ed.2d (13 Klein, United States v. 80 U.S. (12 Sibbald v. United 37 U.S. Wall.) 128, (1871), L.Ed. Pet.) 488, (1838); 9 L.Ed. 1167 cf. distinguished Bridge the Belmont Welsh, Butcher & 206 F.2d Sherrerd v. case when it held unconstitutional a cert, (3d 1953), denied, 259 925, 346 U.S. purported deprive statute which it of L.Ed. jurisdiction to decide the effect to be Thus the statute confronts us given any way pardon ato Presidential question Congress pow- whether has the except as directed in the statute. The change er law case Court in Klein said: Supreme case remanded from the Court. Congress We must think question It' also confronts us with the passed inadvertently limit which rejecting parte whether in the ex legislative separates ju- arguable camera determination of rele- power. (13 Wall.) dicial vancy Court was announc- procedure a rule of criminal or a process. constitutional rule of due For laying I do not read Klein as down congressional power whatever there prohibition against legislating case, be over the law the there no applied pending law be in a ease. congressional power to revise Su- problem attempted The lay preme interpretation Court’s the Con- down of decision rule stitution. law, of constitutional case ef- My given par- to a research has uncovered case in fect Presidential no Supreme then, Supreme If, which the Court ever con- don. Court’s rul- has sidered whether that the ex Court not make an has change parte possible the law of the in a re- determination of case relevance guidance decision, manded is case. Some can be not a constitutional it would Pennsylvania Wheeling found in v. seem & it would follow Belmont Bridge Bridge Co., How.) (13 Belmont apply 54 rather U.S. than Klein and (18 18, (1852), 3504(a)(2). Bridge 14 249 59 L.Ed. U.S. Neither Belmont 421, How.) enlighten (1855). 15 435 Bel- nor Klein L.Ed. on the of a H.R.Rep. 91-1549, Cong. parte 14. See procedure No. 2d an 91st ex in camera in (1970) (reprinted Cong. Sess. 2in U.S.Code tended. Ad.News, (1970), explaining & 4027

639 conflict between mandate fore us—a Court’s subsequent conflict between the Court’s statute, a lower court and a mandate and the statute. effect since in both instances the to be Waterman wrote: given to was determined in the statute “The mandate rule Court highest Court. nothing specific ap is more than one a ever to consider such case general plication appel aof doctrine context, far conflict in a lower court so apply late courts their orders uncover, my as research has been able courts, commonly lower a doctrine Farr, Banco Nacional de Cuba v. 383 referred to as the law of cert, denied, (2d 1967), F.2d 166 case, Briggs Pennsylvania see v. 956, 1038, 390 U.S. 88 S.Ct. 20 L.Ed.2d R., 306, 304, R. 1039, 334 U.S. (1968). de 1151 In Banco Nacional (1948); 92 L.Ed. 1403 Ex Sabbatino, 398, v. 84 Cuba S. Parte v. Sibbald 37 923, (1964), Ct. L.Ed.2d Su- (12 Pet.) 488, 492, U.S. 9 L.Ed. 1167 preme reversing Cir- the Second (1838). applying Other courts in cuit, held that the of state doctrine act law of the case rule have held that a prevent applied to court from the lower lower not bound to follow the examining validity under interna- appellate mandate an court if the by expropriation tional law of an is, interim, by mandate affected government. Cuban re- The case was authority superior an to the court manded district court to hear issuing mandate, such as any litigable decide fact and issues of higher appellate court, either state or proceedings opin- consistent with see, g., Higgins federal, e. v. Califor judgment ion. Before final in the re- Apricot Grower, Inc., nia Prune & Congress passed manded case the Hick- 1924); (2 F.2d 896 Cir. Zerulla v. Su enlooper Foreign Amendment to the As- preme Lodge 518, M.P., ofO. 223 Ill. 1964, 88-633, sistance Act of Pub.L. No. (1906); 79 N.E. 160 mon, v. Jones Har (codified, 301(d)(4), 78 Stat. § amended, 420, 122 Ohio N.E. 151 St. 2370(e)), at 22 U.S.C. (1930); Exp. American R. Co. Dav v. provided: is, (1923); 493, Ark. 250 S.W. 540 Notwithstanding any provision Dredging Frazie, Orleans Co. v. law, no court in the United States Miss. 173 So. 431 ground shall decline on the the fed- court, en banc decision of the same eral act of state to make a doctrine R., Poe v. Cent. Illinois R. 339 Mo. giving determination the merits ef- 99 S.W.2d 82 This principles fect of international principle applied been also when law in a case in which a claim the mandate of the court is affected right of title or other is asserted by intervening statutory enactment, including party state Petty Clark, 113 Utah 192 P.2d (or party claiming through such (1948); Donaldson Chase Se state) (or through) upon based traced Corp., curities 216 Minn. 13 N. taking a confiscation or other after (1943), W.2d 1 aff’d 325 January 1, 1959, by an of that act (1945); S. Ct. 89 L.Ed. 1628 cf. principles state violation of Co., Danforth v. Groton Water ” international law . . . . (1901); Mass. 59 N.E. 1033 Al McGoldrick, amendment in effect overruled the banese v. 129 N.Y.S.2d principle (Sup.Ct.1954). princi of the federal common law of The same ple here; any limiting apply international relations announced should Supreme language Court. The in the Second Circuit Court man concluding preclude judicial ap in- date amendment was should not apply pending litigation, plication tended to of the Amendment in this problem expressed by was faced with the case identical be- for rule of law 640 by appropriate circumstances, been a mandate has affected is ascer-

low based ity constitutional cial administration based on the tice derson, West eral by subsequently enacted federal as the assertion of its constitutional such ble whether plication Const, L.Ed. 1152 The Ct. judge-made ^[957] Thus we hold that Congress but may statute, Virginia, a law on supreme art. . is have statute VI, Moreover, L.Ed. 396 rule of U.S. (1912); King courts, and is entitled to on indicated, 243 objection cl. 2. there constitutional author- law of the land.' U.S. courts a by interposing practice. Messenger doctrine Congress mandate as may It is case 92, 100, the court hand, v. State well be questiona- frustrate is an F.Supp. statute. respect intend- petence. v. An- A prac- here. judi- fed- ap- be- S. a to a different rule ed in an body having cuit, is that the law of the case announc- lier The Pennsylvania found no make tain and the case tained and than court appellate court had understood it to state was other than what the federal to be the appear by subsequent statute, no more certainment of the upon the be.” mandate. in quotation appeals this declaratory, it. decision appellate unless circuit, F.2d at pertinent trial apply inconsistency substantive But, in a applied case relied pronouncement is dictum since But court where a court’s mandate given local law and it as it what it local is state in suggests by binding at the retrial of clearly lawmaking case the Second law federal between the law, and its law of apprehends has is this made to law such as- binding ascer- yields court court state com- Cir- ear- Hickenlooper ed that Amendment partisan judicial tempt apply A pending review should to cases at the reading ed to enactment, including embrace the broader time Klein, suggested supra, States v. case.” 383 F.2d at 178. Judge opinion. in I Seitz’ resist noWhile other case considered temptation, however, applica precise closely analogous issue, a issue is tion the Klein rule nonconsti Lennig in York Life discussed New tutional rules of decision would involve Co., 1942). (3d Ins. 130 F.2d 580 pow respect the same error with to the post-Erie diversity In a case it was con- judicial majori ers of the branch tended on remand an authoritative ty respect powers commits with pronouncement Pennsylvania law of the executive branch. statute in consistent with the mandate of volved Klein was the last effort Third Circuit been had made a Penn- Republicans the Radical sylvania court. wrote: Jones prevent the Court de constitutional “If, judge interfering appre- congres as the cision learned trial hended, sional the later reconstruction. Klein decision must be Whigham [Whigham conjunction Metropol- parte read case with Ex Mc Co., Cardle, (7 Wall.) 506, itan Life Pa. 22 A. Ins. U.S. 19 L.Ed. interpreted parte 2d the law of Penn- and Ex Yerger, 704] differently (8 sylvania per- Wall.) 85, (1869). By we than had 19 L.Ed. 332 opinion, ceived in our earlier fourteenth and fifteenth amend quite right then below was ments had been ratified and it became applying retrial of this ease feasible the Klein Court to fence off plain the rule if and as made subse- the constitutional turf which it had sur by binding quently deci- state court rendered in McCardle and reclaimed necessarily sion. This is so. results, with inconclusive because duty resting upon court, settled, a federal case Yerger. The Court ground in dice the perfectly assert- defendant on the issue of sound his onwas guilt Congress, final it, innocence. was United States v. Cf. Matlock, meaning 415 U.S. the Constitu- of arbiter ground (1974); Brinegar equally L.Ed.2d 242 It on sound tion. was legislature not States, 160, 172-173, asserting could n this, could L.Ed. what facts From a court dictate to silence, because and Justice I an assertion White’s conclude But found. legislature de- that he judice announced a rule of criminal a case sub procedure legislative competence in a rather rule prived than a of constitu- of being subject This of tional law. I proper so would direct otherwise matter legislation principle the district court on remand to make is a violation of judicial determination powers. taint pursuant in the first instance separation of 3504(a)(2), to 18 U.S.C. than executive no less branch part to disclose such second legislative, powers under limited set surveillance records it finds the Constitution. may be relevant to the evidence used at deci- I conclude that unless Thus the trial. the ex Court sion arguable rel- parte determination law, evance is a decision constitutional 3504(a)(2) apply rather we should mandate.

than the

Examining part Justice dealing opinion of White’s the Court COMPANY, The RICHLAND TRUST issue the in camera examination Plaintiff-Appellant, whether not suffice determine does laying process a due down Court COMPANY, FEDERAL INSURANCE proce- requirement or a rule of criminal Defendant-Appellee. speaks superiority of dure. He adversary proceedings No. 73-2100. means for as a justice obtaining an issue cases where Appeals, United States large decided on the of a must be basis Sixth Circuit. volume of factual materials. Argued Feb. carefully 183-185, 89 S.Ct. 961. He Decided March any mention of fifth amendment avoids process due or sixth assist- amendment opin-

ance of counsel. None the other suggest rejected in the case he ions parte

the ex in camera device on consti- grounds. de-

tutional much we can How' problematical. But duce from silence is starting point good interpreting opinion dispute is the fact that the electronic in no

over the surveillances

way integrity affects the the fact-

finding exclusionary process. rule implementation judicial

involves the of a against becoming

policy ac- involved as government’s lawlessness

cessories deterring

and of such lawlessness perfectly reliable ev-

future. excludes It district

idence. Thus an error judge parte

in an ex examina- in camera logs preju- Cir., way also 6 480 F.2d 1212. tion of the would no See

Case Details

Case Name: United States v. John William Butenko and Igor A. Ivanov. Appeal of Igor A. Ivanov

Court Name: Court of Appeals for the Third Circuit

Date Published: Apr 9, 1974

Citation: 494 F.2d 593

Docket Number: 72-1741

Court Abbreviation: 3rd Cir.