United States v. United States District Court for the Eastern District of Michigan

DISTRICT UNITED STATES STATES UNITED OF DISTRICT THE EASTERN COURT FOR (PLAMONDON MICHIGAN et al., et al. INTEREST) IN REAL PARTIES 19, 1972 February 24, June Argued 197 2 Decided No. 70-153. J., delivered Powell, opinion Court, which Douglas, BrennaN, Marshall, -and BlackmuN, Síewart, JJ., joined. Douglas,- J., filed a concurring opinion, post, p. 324. Burger, J.,C. concurred in the result. White, J., filed an opinion concurring in the judgment, post, p. 335. Rehnquist, J., took part no in the consideration or decision of the case. Assistant Attorney. General Mardian argued the cause for the United States. With him on the briefs were Solicitor General Griswold and Robert L. Keuch.

William T. Gossett argued the cause for respondents the United States District Court for the -Eastern Dis- trict of Michigan, et al. With him on the brief was Abraham D. Arthur Kinoy argued Sofaer. the cause for respondents Sinclair et al. With him on the brief were William J. Bender and William Kunstler.

Briefs of amici curiae urging affirmance were filed by Stephen I. Schlossberg for the International Union, United Automobile, Aerospace, and Agricultural Im- plement Workers America (ÚAW), Benjamin Dreyfus for the Black Panther Party et al.

Briefs of amici curiae were filed by Schwartz, Herman Melvin Wulf, L. and Erwin B. Ellmann for the Ameri- can Civil Liberties al.; by Union et John Ligtenberg for the American Federation Teachers; Ameri- can Friends Committee. Service.

Mr. delivered opinion Justice Powell Court. before issue important is ah us for the one

people of our country and their in- Government. It volves the question delicate of the President’s power, acting through Attorney General, to authorize elec- tronic internal matters without more, prior judicial approval. Successive.Presidents of a one-quarter century than have authorized such sur- veillance in varying without degrees,1 guidance from the Congress or a definitive decision of this Court.. This case brings the issue here for the first time. Its resolu- tion is a matter of national concern, requiring sensitivity both to the Government’s right protect to itself from unlawful subversion and attack and to the citizen’s right to be secure in privacy his against unreasonable Government intrusion.

This case arises from a criminal proceeding in the United States District Court for the Eastern District of Michigan, which the United charged States three defendants with conspiracy to destroy prop- Government erty in violation of U. S. C. 371. § One of the defendants, Plamondon, was charged with the dynamite bombing of an office of the Central Intelligence Agency in Ann Arbor, Michigan.

During pretrial proceedings, the defendants moved to compel the United States to disclose certain electronic See n. infra. to hearing conduct information evi the “tainted” information whether determine the which was based indictment the which on

dence response, In trial. at offer intended Government Attorney Gen the of an affidavit filed Government the- con overheard had agents its acknowledging eral, The participated. had Plamondon which versations approved Attorney General the stated also affidavit deemed information intelligence gather “to wiretaps domes of attempts from nation necessary protect existing struc and subvert to attack organizations tic the surveillance logs The Government.” of the ture as follows: reads affidavit Attorney General’s says: deposes duly being sworn N. Mitchell “JohN States. Attorney General “1. I ani the Govern- with connection is submitted This affidavit “2. Plamondon the defendant the disclosure opposition to ment’s which overhearing conversations of his concerning the information which surveillances of eléctronic during course occurred legal. were contends Government in conversations participated has Plamondon The defendant “3. monitoring were agents who by Government were overheard which infor- intelligence gather being employed wiretaps' were which attempts of from protect nation necessary to deemed mation existing structure subvert attack organizations to domestic Department Justice. The records Government. ap- expressly been wiretaps had these' installation reflect the ' Attorney General. proved containing exhibit is a sealed this affidavit with “4. Submitted conversations, description of the a intercepted of the the records surveillances, copies of subjects of the were premises that approval Attorney express reflecting General’s the the memoranda the surveillances. installation of the to interest prejudice the certify national it would I that “5. other than concerning these surveillances facts particular disclose Accordingly, the sealed exhibit referred in camera. the court inspec- in camera solely the court’s for being submitted to herein being to the is not furnished exhibit copy a sealed tion and court, request, its at conclusion of I would defendants. camera, for inspection were filed a sealed exhibit (cid:127) by the District Court. Attorney of the

On the basis General’s affidavit Government' asserted the sealed the' that exhibit, conducted without lawful, though surveillance was exercise of- prior judicial approval, as reasonable Gen- power (exercised through President’s the Attorney eral) security. The District protect the national held the surveillance violated Fourth Court that full, to 'make Amendment, ordered Government conversations. disclosure to Plamondon of his overheard 1971). Supp. (ED F. Mich. Appeals then filed in the Court The Government writ of petition the Sixth Circuit for-a mandamus stayed which was Court order, set the District aside final of the case. ..After- conclud- pending disposition ing jurisdiction,3 that it had that ‘court held that surveillance was unlawful and that the District Court had con- properly .required disclosure overheard certiorari, 444 F. 2d We versations, granted 403 U. 930. S.

I Control and Safe Title III of the Omnibus Crime 2510-2520, authorizes the Act, §§ Streets 18 U. S. C. care- use of for classes of crimes electronic surveillance hearing matter,- place envelope exhibit in a on this the sealed sealed Department it of Justice where it will be retained and return appellate under seal so that be submitted to court may review this matter.” challenged Appeals Jurisdiction was before the Court of on the interlocutory ground and not the District Court’s order was issue, appealable under 28 U. S. C. 1291. On this the court cor § rectly jurisdiction, relying upon held that it did have the All Writs Act, 2d, opinion, C. cited in its 444 F. 28 U. S. and cases § appropriate at 655-656. No attack was made in this Court toas procedure. ness of the writ of mandamus 302 2516. Such § in 18 U. C.S.

fully specified forth 2518 sets order. Section court prior subject necessary application particularized detailed the carefully circumscribed as well as an order such obtain compre- represents a The Act for its use. conditions effective promote more Congress to attempt by hensive of indi- privacy the protecting crime while of control III was Much of Title expression. thought and vidual elec- requirements for constitutional drawn to meet the Berger in by this Court enunciated tronic surveillance Katz v. United York, (1967), 41 388 U. S. v. New States, U. S. requirements the elaborate surveillance

Together with 18 U. S. C. following proviso; is the in Title there III, §2511(3): inor section chapter in this

“Nothing contained (48 of 1934 Stat. of Communications the Act the 605) shall limit 1143; U. S. C. constitu- measures to take such power tional President Nation necessary protect against as he deems hostile potential or attack or other acts actual in- power, foreign' intelligence to obtain foreign security formation deemed essential protect or to national States, United against foreign intelligence information activities. in he anything chapter Nor shall contained power, to limit the constitutional deemed such as he deems neces- President to take measures over- States sary protect Government throw the or other force unlawful means, against any present or other clear and or danger to structure Gov- existence of any ernment. The contents of wire oral com- or intercepted munication authority powers President exercise foregoing be received evidence trial hearing, interception only where such proceeding or other be otherwise used and shall not reasonable, necessary implement that except disclosed as is supplied.) power.” (Emphasis that argues The relies on 2511 It § Government the security “in from excepting national surveillances requirement. Congress recognized Act’s warrant such, authority surveillances with- President’s to conduct judicial approval.” out Brief United States prior, recognition thus is viewed as a or affirm- 28. section authority in President con- ance of a constitutional domestic such as duct warrantless surveillance that involved in this case.

We think the of 2511 as the language (3), § well history this-interpreta- refutes legislative statute, language tion. The relevant that: is . chapter in this . shall limit

“Nothing contained . to take power constitutional President protect.. measures ás he deems .” necessary such im- is an specified. most, At this dangers certain plicit does have recognition that the President this, powers specified Few would doubt areas. protec- things as the section other among —to refers — other “against potential actual or attack or hostile tion acts of But so the use of the foreign power.” far as concerned, is power President’s electronic surveillance essentially is language neutral. certainly power, confers no as the (3) Section 2511 purpose. wholly inappropriate for such language merely interpreted the Act shall not provides It power to limit or disturb such as the President have short, Congress simply under the Constitution. In left found This presidential powers where it view thém. Title III. general is reinforced context of Sec- (1) broadly prohibits tion the use electronic “{ejxcept as otherwise specifically provided chapter.” Subsection (2) thereof contains four specific exceptions. In each the specified exceptions, the statutory language is as follows:

“It shall not be unlawful ... to intercept” par- type ticular of communication described.4 The language of (3), subsection here is to involved, be contrasted with the language of exceptions set forth in preceding subsection. Rather than stating presidential warrantless uses of electronic surveil- lance “shall be unlawful” and thus employing the standard language exception, (3) merely subsection disclaims any intention to “limit the constitutional power of the President.”

The express grant of authority conduct surveil- lances is found in § 2516, which authorizes Attorney the General application make to a federal judge when provide evidence of certain offenses. These offenses are described with meticulous care and specificity. the Act authorizes

Where surveillance, procedure the to be followed is specified in §2518. (1) Subsection thereof requires application to a judge of competent jurisdiction for a prior order approval, and states in detail the information réquired in such application.5

4 These exceptions relate to certain activities of communication common carriers and the Federal Communications Commission, and to specified situations where a party to the communication has consented to the interception.

5 Title 18 U. §2518, S. C. (1), subsection reads as follows: 2518. Procedure “§ for interception of wire or oral communications “(1) application Each for an order authorizing approving the interception of a wire or oral communication shall be made in writ- ing upon oath or affirmation to judge a of competent jurisdiction prob- eleménts necessary the (3) prescribes Subsection issuing find before .judge the must which able cause (4) interception. Subsection an authorizing an order of such an contents order.. required forth sets authority application. to' such applicant’s make state the shall following information: shall include application Each officer investigative or law enforcement “(a) identity authorizing application; and the officer making application, circumstances the facts and “(b) complete statement of full and a an order jústify his belief that applicant, upon relied (i) particular offense issued, including to the details as be should committed,' (ii) par- a been, being, about to be is or is that has of the facilities from the nature and location description of ticular intercepted, is to be the communication place where which or sought description type of the of communications (in) particular known, (iv) identity person, if com- intercepted, intercepted; to be mitting whose communications áre the offense and or not other “(c) complete statement as to whether a full why they investigative have been tried and failed or procedures reasonably unlikely appear if tried or to be too to be to succeed dangerous;

“(d) period interception for a statement of the of time which required investigation is to be maintained. If the nature of the automatically interception such that authorization should type terminate the described of communication been when has first obtained, particular description establishing probable cause' facts type to believe additional communications of the same will thereafter;. occur “(e) complete concerning a full .and statement of the all .facts

previous applications authorizing known to the individual and mak- ing application, any judge made to for intercept, authorization to approval or for interceptions of, wire or oral communications involving any persons, of the same places specified facilities or application, and the by action taken judge, on each such application; “(f) application where the order, for the extension- of an .is setting

statement forth the results thus far obtained from the inter- ception, explanation or a reasonable of the failure to obtain such results.” an Pro- (5)

Subsection sets strict limits on order. time (7) emergency- vision made subsection for “an is (or found Attorney situation” to exist General principal attorney prosecuting State) of a “with respect conspiratorial the na- threatening activities security tional interest.” In situation, such a emergency may “if application conducted an for an approving interception order . . within is made . forty-eight If obtained, hours.” such an order is not application therefor interception denied, is deemed be a violation of the Act.

In view of these and other provisions interrelated delineating permissible interceptions crim- particular activity carefully inal upon specified conditions, would have been incongruous Congress have legislated respect with important to the complex area of security national in a brief single and nebulous paragraph. This would comport sensitivity with the problem involved or with the extraordinary care Congress exercised in drafting other sections of the Act. We therefore think conclusion inescapable that Congress only intended to make clear that the Act simply did not legislate with respect to national surveillances.6

The legislative history of §2511(3) supports interpretation. Most relevant is the colloquy between Senators Hart, Holland, and McClellan on the Senate floor:

“Mr.'HOLLAND. . The .. section [2511(3)] from which the Senator read does not [Hart] has affirma- (3) sentence final states that the contents of § an the; interception “by authority of President in the exercise of the foregoing may powers be received in only evidence . . . where such interception was reasonable . . . This sentence seems intended to assure that when the President conducts lawful surveillance— pursuant power to whatever he possess evidence is —the admissible.

307 tively give any We power. are not ... affirmatively any power upon the conferring President. We are simply saying that nothing herein shall limit such power as the President under has the Constitu- tion. . . certainly . We do not him a grant thing.

“There is nothing affirmative in this statement. “Mr. McCLELLAN. Mr. we President, make it understood that we are not trying to take anything away from-him.

“Mr. HOLLAND. The Senator is correct. (cid:127) “Mr. HART. Mr. President, there is no intention here to expand by language a constitutional power. Clearly we could do so.

“Mr. McCLELLAN. Even we though intended, could not do so.

“Mr. HART. . . . However, we are that agreed this language should not regarded as intending to grant authority, including authority put a bug on, that the President does not have now.

“In addition, Mr. I President, as think our ex- change clear, makes nothing in section 2511 (3) even attempts the limits Presi- the. define national security dent’s power present law, under extremely vague .... which I have always found 2511(8) .Section 'merely says that the President if has such power, then its exercise is no way 7 by title III.” (Emphasis supplied.) affected Cong. 7 114 Rec. 14751. Senator McClellan sponsor was the of the exchange The above only constitutes (3) time that § bill.. expressly on the Senate or House Report debated floor. Judiciary the Senate Committee is explicit not so exchange as the (cid:127) floor, (cid:127)on the appears recognize it (3) but § under. security power national be—“is President —whatever Rep. 109.7, not to be Cong., Sess., deemed disturbed.” S. No. 90th 2d Security also The “National Wiretap”: See Presidential Prerogative Responsibility, Judicial where author concludes (3) “Congress position took what amounted to a § of con- expression hardly expect clearer could One in- explicitly debate above neutrality. The gressional to (3) was intended 2511 nothing § in dicates presidential whatever or to contract expand or to define the na- affecting in matters powers existed accept the Government's If could security. we tional pre- congressionally as a (3) 2511 §of characterization of a war- requirement general exception to scribed of the question necessary to consider it would be rant, within casé came in this whether the surveillance statutory exception and, so, if whether exception (3) viewing constitutionally § valid. But itself neutrality, of expression disclaimer and congressional' a the execu- statute is not the we hold that the measure must Rather, we in case. authority asserted tive this President. powers of the the constitutional look to II lim emphasize It at the outset to important This the Court. case question ited before nature surveil challenge no constitutional raises- electronic III of the Omni by Title specifically lance as authorized Nor. of 1968. bus Act Crime Control Safe Streets necessity of question is there or as to any doubt un of crimes a warrant the surveillance obtaining security Katz v. United related the national interest. States, Berger York, New 389 U. S. (1967); requires (1967). Further, the instant case U. S. scope of no on the the President's surveillance judgment powers, power respect foreign with activities country. Attorney or General’s within without this that, e case states the surveillances wer affidavit question constitutionality on the neutral noninterference wiretaps national authorized President.” warrantless 888, 889 L. 45 S. Cal. Rev.

“deemed, attempts from necessary protect the nation organizations and subvert the ex of domestic attack (emphasis supplied). structure Government” isting directly involvement, -is no There evidence indirectly, foreign power.8 of a important, is therefore present inquiry, though

Our by. open left question a narrow one. It addresses a Katz, supra, at 358 23: n. authoriza- prior

“Whether othér safeguards than satisfy Fourth by- tion would magistrate national- Amendment situation involving security . . 7 .” the essen- question requires

The determination of this tial Fourth into .the “reasonable- inquiry .Amendment way in question, ness” of the search and seizure the mean- which that “reasonableness” derives content and (3) power of the Section 2511 to “the constitutional refers (i) necessary pro types President” in two of situations: where to against attack, intelligence tect other hostile activities of a acts or (ii) “foreign power”; necessary against protect or where to present danger overthrow of the' Government or other clear and Although to structure or existence of Government. both specified of the are situations sometimes referred to as “national security” threats, security”- only “national is used in the term (3) first sentence respect foreign of 2511 with to the activities of § powers. only This case (3), involves second sentence of §2511 with' the threat emanating according Attorney to the General’s — organizations.” affidavit —from “domestic Although attempt we no precise definition, we organization” use the term “domestic in this opinion to group organization (whether formally mean a or in or formally constituted) composed of citizens of the United States and significant which has no foreign power, agents connection with a its agencies. or No doubt there are cases where it bewill difficult distinguish to between “foreign” “domestic” and unlawful activities against directed the Government of the United there where States is collaboration varying degrees between groups domestic or organizations agents agencies foreign powers. But this is not such a case. Coolidge

ing through reference to warrant ulause. Hampshire, New 473-84 S.U.

We begin inquiry noting that the President of the has the fundamental duty, United States under Art. II, 1,§ Constitution, “preserve, protect and defend the Constitution of States.” Im- plicit duty power protect is the our Govern- ment against those who. would or overthrow subvert unlawful means. In the discharge duty, Attorney through the General— President — may find it necessary employ electronic surveillance to obtain intelligence information on plans of those plot who unlawful acts the Government.9 The use of such surveillance in internal security cases has been more or sanctioned less continuously by various Attorneys Presidents General since July 1946.10 9Enactment of Title III congressional reflects recognition of the importance of such surveillance in combatting types various of crime. Hogan, Frank Attorney S. District County for New York years, over 25 telephonic described interception, pursuant to court order, single , “the most weapon valuable in law enforcement’s fight against organized crime.” 117 Cong. Rec. 14051. The “Crime appointed by Commission” President Johnson noted “[t]he .great majority of law enforcement officials that the evidence .believe necessary bring criminal consistently sanctions bear on the higher organized echelons of crime will not be obtained without aid of electronic techniques. They maintain these techniques indispensable are adequate to develop strategic intelli gence concerning organized crime, to up specific set investiga tions, to.develop witnesses, to corroborate their testimony, and to serve as substitutes for them —each necessary step in the evidence- gathering process'in organized crime investigations prosecutions.” and Report by the President’s Commission on Law Enforcement and Administration Justice, The Challenge of Crime in a Society Free (1967). 10In that Attorney month General Tom Clark advised President Truman of necessity of using wiretaps “in cases vitally affecting security.” domestic May In 1940 President Roosevelt had au-

311. Attorney Brownell, Herbert General under President the use of electronic surveillance both urged Eisenhower, in internal and international matters on the security grounds those acting against the Government

“turn to the telephone carry on their intrigue. The plans success of frequently upon their rests from piecing together shreds of information received many sources and participants nests. The many- conspiracy in the dispersed are often and stationed in various strategic positions government and throughout country.”11 industry Though respondents the Government and debate their seriousness magnitude, threats and acts of sabotage the Government in sufficent number exist justify investigative powers respect with to them.12 The covertness and complexity potential unlawful con- Attorney thorized General wiretapping Jackson to utilize in matters “involving defense nation,” questionable but it is whether language this meant apply solely domestic subversion. The nature wiretapping and extent of apparently varied under dif- ferent administrations and Attorneys General, but, except for sharp Attorney curtailment under Ramsey General Clark years latter administration, of the Johnson electronic surveillance has been against organized used both crime domestic cases at least since 1946 memorandum from Clark .the to Truman. Brief for 16-18; United States Respondents Brief for 51-56; 117 Cong. 14056. Rec. 11Brownell, The Security Public Tapping, Wire 39 Cornell Q. 195, L. (1954). See also Rogers, The Case For Tapping, Wire (cid:127) 63 Yale L. J. 792 , The Government 1,562 asserts there were bombing inci dents in the United States January from 1, 1971,’ July 1, 1971, most of-which involved Government related Respondents facilities. dispute these statistics as many incorporating frivolous incidents as well as bombings against nongovernmental facilities. precise level of activity, however, is not relevant to the disposition of this case. Brief 18; States Brief for Respondents 26-29; Reply Brief for United States 13. necessary depend- and

duct Government make elec- many upon telephone conspirators ency investigatory instrument an effective tronic acceleration The marked in certain circumstances. in their developments sophistication use technological planning, techniques for resulted new have It activities. of criminal and concealment commission, interest Government contrary public to the would be employment and lawful deny prudent to itself the very employed against which are techniques of those law-abiding Government and its citizens. function

It basic' has been said most “[t]he for the provide government security Arizona, Miranda v. property.” of his individual and And dissenting). 436, (1966) J., 384 U. S. (White, func capacity to safeguards unless Government its own society preserve tion and its people, rights' itself could become so disordered that all Hughes liberties be As endangered. would Justice Chief Hampshire, Cox New reminded us U. S. 574 (1941):

“Civil the Constitu- liberties, guaranteed tion, imply the existence of an organized society liberty itself public order which maintaining without would lost in the excesses of abuses.” unrestrained' But recognition elementary of these truths does make the employment Government of electronic surveillance a welcome development when em —even ployed with judicial restraint' and under supervision. understandably, deep-seated There is, uneasiness apprehension that this will be used to intrude capability upon privacy cherished of law-abiding citizens.13 We likely Professor Alan Westin has written course of on. privacy between the future conflict value of and the “new tech nology” of law enforcement. Much of techniques the book details safeguard privacy. look to Rights the Bill evil physical entry the home is the chief Though of Amendment the of the Fourth wording which private speech spirit, now shields directed, its broader States, v. United from unreasonable surveillance. Katz York, supra; New v. supra; Berger Silverman States, in Katz (1961). 505 Our decision 365 U. S. (cid:127) Amendment into instances refused to lock the Fourth Amendment physical trespass. Rather, of actual the items, but governs only tangible “not the seizure of . . . well of oral statements recording extends'as to the property . local trespass without ‘technical under . . ” Katz, supra, at 353. That decision implicitly law.’ unsuspected governmental the recognized that broad and which electronic privacy incursions into conversational of application entails14 necessitate the safeguards. Fourth Amendment a con- cases, moreover, National reflect often of values not vergence First and Fourth Amendment in- present “ordinary” of the Though in cases crime. in duty may stronger be vestigative executive the consti- jeopardy such so also is there cases, greater tutionally “Historically protected speech. struggle speech for freedom of in press England and was bound up with the issue scope of the search and seizure physical possible- and electronic surveillance and such threats personal privacy psychological testing personality storage electronic information and retrieval. Not all of the con- temporary privacy directly pressures threats to emanate from Privacy of crime control. and Freedom 14Though by. intercepts total number of authorized state judges pursuant and federal to Tit. Ill of the. 1968 Omnibus Crime Control and may Safe Streets Act was 597 in éaeh surveillance interception involve of hundreds of different conversations. The average intercept in 1970 people conversations, involved 44 and 655 of which incriminating. 295 or were Cong. Rec. 14052. 45% 717, Warrant, S. U. v. Search Marcus

power,” tendency documents abundantly History (1961) mo its benign benevolent Government —however fervently most who those suspicion view with tives —to be protections Amendment Fourth policies. its dispute sur official targets necessary when more come their unorthodoxy suspected those veillance is acute dissent political danger beliefs. political vague under so to act attempts the Government where security.” protect “domestic power concept as security, defining domestic difficulty Given protect acting of abuse danger interest, Hart addressed Senator apparent. becomes interest (3): on floor debate § dilemma say are my fear —we is I read it—and this “As could declare— motion, his President, on ing that Black dodgers, your poison favorite name —draft rights activists Klan, Ku Klux civil Muslims, the structure to. present danger a clear and to be of the Government.” or existence dread not be a must public dissent price The of lawful Nor power. an unchecked surveillance subjection of eavesdropping official the fear of unauthorized must of Govern- discussion and deter citizen.dissent vigorous dis- private For private in conversation. ment action essential public discourse, is open sent, no less than society. our free

Ill its absolute in Amendment is Fourth As the basic and is balance our task to examine terms, of Government duty in this case: at stake values subsequent, assurances, quoted in Cong. 14750. The 15 114 Rec. (3) statutory implied grant, no opinion, part I of §2511 power presidential eased the Senator’s contraction, or definition misgivings. protect security, potential and the danger domestic

posed unreasonable surveillance individual privacy and expression. If free legitimate need Govern- ment to. safeguard security requires domestic the use surveillance, question electronic is whether needs of citizens for privacy expression may and free not be better requiring before such protected warrant surveillance, is undertaken; We ask whether must also frustrate; warrant requirement would unduly efforts the. of Government protect itself from acts of subversion overthrow, it. directed

Though the speaks broadly Fourth Amendment ‘unreasonable searches seizures,” definition “reasonableness”' turns, at least on the more part, specific commands of the warrant clarise. Some have argued that relevant'.test “[t]he it is hot whether to procure reasonable á search but warrant, whethér the search was reasonable,”. Rabinowitz, States 330 U. S. 66 (1950).16 This however, over view, looks the second clause of the Amendment. warrant c la use of the Fourth Amendment is not dead Rather, has been . language.

“a part valued our constitutional law for decades, it has determined the result scores and scores' of cases courts all country. over It is riot an inconvenience to be somehow ‘weighed’ of, the claims police efficiency. is, It or should ’ 5 view has not accepted.' This been In Chimel California, v. 39 (1969), U. S. 752 the Court considered the Government’s contention judged that the search general a “reasonableness” standard on without reference to the warrant clause. .The Court concluded that argument was “founded subjective little on more than a regard view ing acceptability certain, of police conduct, sorts of not on considerations relevant to Fourth Amendment interests. Under such, an unconfined analysis, Fourth protection Amendment in this approach area would evaporation point.” Id., at 764-765. machinery of our part working

-be,- important an- matter of as a course operating government, of - mistakenly over but check the ‘well-intentioned of part a who are executive zealous officers’. Coolidge Hamp Newv. system of law enforcement.” . shire, S., at 481 403 U. Rabinowitz, supra, at United States v. also See d y. States, Unite Davis dissenting); (Frankfurter, J.,, dissenting): (Frankfurter, J., (1946) U. S. that held Lord Mansfield ago, two centuries Over ordered principles prohibited common-law warrants might who the. the' of individuals arrest unnamed officer fit,” not libel. “It is were of seditious guilty, conclude . judging oi- receiving. “that the. Mansfield, said the. left to the discretion should be information . . should magistrate ought officer. The judge;’ Three v. officer.” give certain directions Leach King’s Messengers, 1001, 1027 19 How. St. Tr. (cid:127) very Lord Mansfield’s formulation touches' heart prac that, Fourth Amendment directive: where ' search,and repre- tical, governmental seizure should sent both the of the officer to evidence gather efforts magistrate .wrongful judgment acts and is sufficient to inva justify collected evidence In private premises sion of a citizen’s or conversation.' concept herent in the of a warrant its issúance detached, Coolidge “neutral and New magistrate.” States, Hampshire, supra, 453; supra, at Katz v. United t requirement “probable a 356. further cause” magistrate instructs the that baseless searches shall proceed.

These Fourth freedoms properly Amendment cannot be guaranteed if domestic surveillances solely be' conducted of the Execu- .within discretion tive Branch. The Fourth Amendment does not con- template the executive officers .Government as neutral and disinterested magistrates. Their duty and responsi- bility are to enforce the- laws, to investigate, and to supra, prosecute. Katz v. United States, at 359-360 J., concurring). But those charged with this (Douglas, investigative prosecutorial duty should not be the sole judges of when to constitutionally utilize sensitive means pursuing their tasks. The historical judgment, which Fourth Amendment accepts, that unreviewed executive discretion may yield too. to pressures readily to-obtain incriminating and overlook potential evidence invasions privacy protected speech.17

It may well that, in the instant case, the Govern- ment’s surveillance of Plamondon’s conversations was a reasonable one readily which would have gained prior judicial approval. But this Court never “has sustained a search upon the sole ground that reasonably officers expected to evidence of a particular .find crime and activities, voluntarily confined their to the least intru-. supra, sive means Katz, consistent with that end.” at The 356-35.7. Fourth Amendment contemplates prior judicial judgment,18 not the risk that executive dis- cretion may be reasonably judicial exercised. This role accords with our basic constitutional doctrine that in- dividual freedoms will best be preserved through a. separation of powers and division of functions among the different branches levels of Government. Har- lan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, A. B. A. J. 943-944 (1963). The independent upon check executive discretion.is not

17 Lasson, N. History and Development of the Fourth Amend ment to the United States Constitution 79-105 18We use “judicial” the word to connote the traditional Fourth requirement Amendment of a neutral and magistrate. detached “extremely argues, the Government' satisfied, post- Indeed, review.19 judicial post-surveillance limited” surveillances the- reach never would review surveillance Prior review prosecutions. in result to failed which time-tested is the magistrate detached' and a neutral Beck rights. Amendment Fourth effectuating means (1964). S. Ohio, 379 U. 96 v. to exceptions some been have there that true

It is S. 395 U. California, Chimel v. requirement. warrant McDon (1968); 1 392 U. S. Ohio, Terry v. (1969); 752 Carroll (1948); 451 States, U. S. ald v. United excep But those States, S.U. Katz, delineated, carefully and number few in tions are needs legitimate they serve 357; general, at supra, well- their own protect officers of law enforcement Even destruction. from evidence preserve being has re Court exceptions, out carving those while whenever must, “police that principle affirmed the searches judicial approval obtain practicable, advance yv. procedure,” the warrant through and seizures Terr at 762. California, supra, Chimel v. Ohio, supra, 20; at circumstances special that the argues Government The domestic, security, necessitate surveillances applicable is It requirement. the warrant exception to a further judicial review would prior requirement that the urged constitu- of his discharge in the the President obstruct domestic, told security. areWe protect duty tional (cid:127) primarily are. directed- these surveillances further that with intelligence collecting maintaining to the security wiretaps should Government.argues that domestic appears it post-surveillance courts in review upheld be “[u]nless proposed sur Attorney that General’s determination that security'matter capri arbitrary relates to a veillance national e., i. cious, a clear discretion abuse broad constitutes Attorney be has to all information that will General obtain .,. protecting .” helpful to the President the-Government §2511(3). Brief United States 22. the various unlawful acts respect to subversive and are not an attempt forces/ to gather evidence for specific criminal prosecutions. It is said that type surveillance should sub- ject to traditional requirements warrant which were established govern investigation' of criminal activity, not ongoing intelligence gathering. Brief for United 15-16, States 23-24; Reply Brief for United 2-3. States The Government further insists that courts “as a practical matter would have knowledge neither-the nor the techniques necessary to determine whether there was probable cause believe that was nec- essary to protect security.”. national These security problems, contends, Government involve “a large number of complex and subtle beyond factors” the com- petence of courts to evaluate. Reply Brief for United States 4.

As a final reason for exemption from a warrant re- quirement, the Government believes that disclosure to a magistrate of all or even a significant portion of the information' in involved security domestic surveillances “would potential serious create dangers to -the national security and to the lives of informants and agents., .. .' Secrecy is the ingredient essential in intelligence gather- ing; requiring prior judicial authorization would create a greater 'danger of leaks . . . , because addi- tion to the judge, you have the clerk,-.the stenographer and some other officer like law assistant or bailiff who may be apprised of the nature’ of the surveillance-.” Brief for United States 24-25:

These contentions behalf a complete exemp- .of tion from the warrant requirement, when urged on behalf of the President and the national security -its domestic implications', merit the most careful consideration. We (cid:127)certainly do reject not them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than iñ the less turbulent doubt, pragmatic no is, There history.' of our

periods position. Government’s force for the made has been a case think not we do But standards. Amendment Fourth from departure requested complete justify circumstances, do described prior from security surveillance domestic exemption pur- its surveillance, whether scrutiny. Official judicial intelligence ongoing or investigation criminal pose pro- constitutionally infringement risks gathering, are surveillances Security speech. privacy tected vagueness inherent of the because sensitive especially necessarily broad security concept, domestic of the gathering, intelligence nature continuing polit- to oversee surveillances such utilize temptation con- before, have as we recognize, We ical dissent. basis, domestic President’s stitutional manner in a be exercised must but we think role, In this case Amendment. Fourth with compatible warrant prior appropriate an requires that w;e hold procedure. argument the Government’s accept cannot

We complex subtle are security matters too. internal with deal regularly Courts evaluation. judicial no reason society. There of our difficult issues most be insensitive judges will federal to believe domestic involved the issues uncomprehending of that do- recognize, Certainly courts can security cases. considera- involves-different security surveillance mestic If the “ordinary crime.” from the tions en- law senior our complex for or subtle is too threat court, a convey its significance officers forcement cause probable is there whether may question one surveillance. will frac- approval judicial prior believe do we

Nor gather- intelligence official secrecy essential ture activity long has criminal 'of investigation The- ing. , involved imparting sensitive judicial information to of- ficers who respected have the confidentialities involved. Judges may be upon counted to. be especially conscious security requirements in national cases. security Titie III of the Omnibus Crime Control and Safe Streets Act already has imposed responsibility this judiciary on the with connection such crimes as espionage, sabotage, and treason, 2516 (l.)(a) .§§ and (c), each of which involve domestic as well foreign security threats. Moreover, a application public involves no or warrant adversary proceedings: is an ex parte request before a. magistrate judge; Whatever dangers cler- ical and secretarial personnel may can pose be mini- mized proper measures, administrative possibly point of allowing the Government itself to provide the necessary clerical assistance.

Thus, we conclude the Government’s concerns do not justify departure in this case from customary Fourth Amendment requirement judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon Attorney General, this justified inconvenience in a free society to protect constitutional values. do Nor we think the Government’s domestic surveillance powers will be im- paired significant degree. A prior estab- warrant lishes presumptive validity of the surveillance and will minimize the burden justification in post-surveillance judicial By review. no means of least importance will be the reassurance of public generally that indis- criminate wiretapping and bugging law-abiding citizens cannot occur.

IV We emphasize, before concluding this opinion, scope of our decision. As stated at the outset, case involves only the domestic aspects of national se- curity. We have not addressed, and express no opinion

322 respect with may involved be which to, the issues Nor agents.20 their or powers foreign of

to activities (3) 2511 §of langi^age thé rest on decision our does III Omnibus Crime of the of Title any other section or does Act of 1968. Act That and Safe Streets Control powers or delineate to define attempt the national threats meet domestic President security. type of stand- hold that same

Moreover, we do not necessarily III by Title are prescribed and procedures ards , secu- domestic recognize We applicable to case. practical policy different may involve rity “ordinary crime.” the surveillance considerations from long range often security intelligence gathering types various sources and involves interrelation of such surveillance targets The exact information. identify than in surveillance may be more difficult specified many types of crime operations against intelli- emphasis III. of domestic Often, too, Title activity unlawful prevention is on the gence gathering preparedness or enhancement the Government’s possible emergency. Thus, some crisis future than precise focus of domestic be less surveillance may types that directed more conventional of crime. III potential Given these between Title distinctions criminal surveillances and those the domestic involving may Congress protective wish to. consider security, , already standards for the latter differ from those which specified prescribed for crimes Title III. Different compatible with the Fourth Amend- standards swgra.. 8, surveillance, n. See For the view that warrantless 20 though impermissible cases, may in domestic be constitu Smith, see United States v. foreign powers involved, tional where are 424, (CD Supp. 1971); F. 425-426 Cal. and American Asso Bar 321 Project Justice, ciation on Standards for Criminal Electronic Sur (Approved. 1971, 11). Supp. veillance Draft Feb. Clay, United States (CA5 1970). 2d See also F. if they ment are reasonable in both relation to the legiti mate need of Government intelligence for information and the protected rights of our citizens. For the warrant i application may vary according to governmental nterest to be enforced and the nature of citizen rights protection. deserving As the 'Court said Camara v. Municipal Court, 387 U. S. 523, 534-535 (1967):

“In cases in which the Fourth Amendment requires that a warrant to search be. obtained, ‘probable cause’ is the standard which a particular de- cision -to search is tested against the constitutional mandate of reasonableness. . . In determining whether particular inspection is reasonable —-and thus in determining whether probable there is cause to issue a for warrant that inspection need for. —the the inspection must be weighed in terms of these reasonable goals of code enforcement.” It be that’ Congress, for example, judge would that the application and affidavit showing probable cause need. not follow the exact requirements of § 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court (cid:127)authorization could, in sensitive cases, be made to. member of a specially designated (e. g., court the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict n as those in § 2518. The above paragraph does not, -of course, attempt

guide the congressional judgment but rather to delineate the present scope of our own opinion. We do not at- tempt to detail precise standards for domestic secu-. rity warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do required is approval judicial prior that however,

hold, involved security surveillance domestic type .of ac- made may be approval such that case Congress standards reasonable such with cordance may prescribe.

V conversations Plamondon’s the surveillance As ap judicial prior without conducted because unlawful, Alderman correctly held below courts proval, controlling and (1969), S. States, 394 U. im- own his accused disclosure requires in stated As conversations. intercepted permissibly ap where should, and .can court trial Alderman, “the en under counsel his defendant place propriate, thé of disclosure unwarranted orders forceable inspect.” entitled they may which materials at 185.21 S.,U. hereby is Appeals of Court the of judgment

The

Affirmed. result. in the concurs Justice Chief considera- in the Rehnquist part no took Mr, Justice case. this decision or tion concurring. Douglas, Mr. Justice these add I Court, the opinion the in join IWhile of it. support words the campaign of the phase important an

This exemptions obtain intelligence agencies police Amendment. Fourth the Clause the Warrant from eaves- of electronic nature clandestine due For, Govern- on placing is acute need dropping, , this facts of and on time unnecessary at think We for a Government advanced arguments consider case to decision scope of the Court’s the basis re-examination Alderman.

ment heavy burden to show that “exigencies situation course imperative.” [make its] Other abuses, such search incident to arrest, have partly been deterred threat damage actions against of- fending officers,2 the risk of adverse publicity, possibility of reform through the political process. These latter safeguards, however, áre ineffective against lawless wiretapping and “bugging” of which their victims n are totally unaware. Moreover, even the risk of ex- clusion of- tainted evidence would here appear to be of negligible deterrent value inasmuch as the United States frankly concedes' that the primary purpose of these searches is to fortify its intelligence collage rather than to accumulate evidence support indictments and convictions. If the Warrant Clause were held in- applicable here, then the federal intelligence machine would literally enjoy unchecked discretion.

Here, agents federal wish to rummage for months on end through every conversation, no how matter intimate or personal, carried over selected telephone lines, simply to seize those few utterances which add to their sense pulse of a domestic underground.

We are told that one national security wiretap lasted for 14 months and monitored over 900 conversations. Senator -Edward Kennedy found recently that “war- rantless devices accounted for an average of 78 to 209 days of listening per device, as compared with a 13-day per device average for those devices installed under court order.”3 He concluded that the Government’s 1 Coolidge v. Hampshire, New 403 443, U. S. 455; McDonald v. States, United 451, 335 U. 456; S. Chimel v. California, 395 U. S. 752; United Jeffers, v. States 48, 342 U. S. 51. 2 See Bivens v. Six Agents Unknown Named Federal Bureau Narcotics, 403 U. S. 388. 3 Letter from Senator Edward Kennedy to Members of the Sub committee on Administrative Procedure and Practice Senate Judiciary Committee, 17,1971, Dec. p. 2. Senator Kennedy included

326 possibility frightening “the posed

revelations of this of citizens thousands of untold conversations no which secret devices on country being are monitored opera may remain which and judge has authorized 4 Even a time.” years at perhaps for and tion months or uses who caller and random the most innocent flagged become a a line can tapped into telephones^ Laird v. See data bank. the Government’s number in . Tatum, 71-288 Term, No. 1971 very epitomize privacy invasions gross Such This' directed. Clause was evil which Warrant to the hazards the unfortunate been Court witness .has sanc prior not receive did intrusions which police Weeks example, in For by independent magistrates. tion Ohio, 367 U. S. States, Mapp v. v. United 383; 232 U. S. California, home 752, 395 entire 643; and Chimel v. U. S. s Indeed, pursuant to warrantless ransacked were searches.. States, entire 346, the in Kremen v. cont 353 U. S. United (such items more than 890 ents cabin, totaling óf arrest of incident an were seized Dish Rag”) “1 5. study. for Francisco taken to San and were occupant' its ' New Von v. case, similar by FBI In a agents. Cleef department-ordered and comparing in his letter chart court-ordered repro- by agencies. This chart wiretapping .bugging federal opinion. Por a statistical breakdown Appendix to this duced 1,042 wire- location, implementing agency- of duration, judges, see Adminis- state and federal tap orders issued 1971 Courts,'Report Applications on the United Office of States trative Interception, Authorizing Approving the or Wire- Orders fo.r 1971; Post, May 14,T972, Washington The Oral Communications (final A30, ed.). p. col. Schwartz, Report supra, 3, A on Kennedy, n. at 2. See also H. (American Civil Electronic and Benefits of Surveillance .Costs 1971); Schwartz, Legitimation of Electronic Liberties Union Order,” Mich. L. Rev Eavesdropping: The Politics of “Law seized, Appendix objects see the complete For a itemization States, Kremen 353 U. S. 349. 814, police, warrant, a searched Jersey, 395 U. S. without eventually seizing hours, an arrestee’s house three including books, magazines, articles; “several thousand' correspondence (both private catalogues, mailing lists, film.” open photographs, drawings, and unopened), United.States, Id., In Lumber Co. v. at 815. Silverthorne of au- “without a shadow 385, agents 251 U. S. federal (the thority” petitioners the offices of one of the raided “made proprietors jailed) of which had earlier been a sweep papers clean and documents books, all Court, found for the termed Holmes, there.” Justice Id., 391. In Stan- 390, this tactic an at “outrage.” Texas, police more 476, v. state seized S.U. ford 2,000 literature, including writings than items of search Black, pursuant general Mr. Justice a warrant inspect alleged issued to an subversive’s home. security” That “domestic is said to be involved here not draw this outside the mainstream of Fourth does case Rather, Amendmént law. desire of recurring reigning employ techniques officials to to intimidate their dragnet the core it was prohibition. critics lies at of that For such excesses as the use of warrants and general writs of led to the assistance that ratification ' Carrington, In Entick Fourth 19 How. Amendment. Rep. 1765, Tr Eng. 807, St. 9 decided one a the executive war striking parallel finds Secretary of rants utilized here. The State had issued executive warrants to his au general messengers about mate thorizing them roam and to seize libelous sovereign. rial and libellants of the critic Entick, dur Crown, general was the victim of such one search impounded. seditious were He publications which his ing damage trespass against action for brought successful appeal. was sustained on messengers. verdict sweeping wrote that if such tactics were Lord Camden cabinets and of every then secret bureaus validated, “the to the open be thrown subject kingdom in this will whenever the sec inspection messenger, search and of a suspect, or of state think even to charge, shall fit retary aof person publisher to be author, printer, a Id., and In a related similar seditious libel.” at 1063. 206, Money, Huckle K. B. 95 207, 2.Wils. proceeding, v. pre judge the same who Eng. Rep. (1763), 769 768, victim of appeal over Entick’s for another held sided man’s, a despotic saying same enter practice, “[t]o by pro in order to warrant, a nameless house of virtue Spanish Inquisition cure is worse than the ....” evidence, Wood, 98 See also Wilkes v. 19 How. Tr. 1153, St. Boyd United early Rep. (1763). as v. Eng. As States, recently as 616, 626, 116 U. S. and Stanford Texas, Berger York, v. New supra, 485-486; v. at Coolidge Hampshire, supra, New and 49-50; v. 41, U. S. tyrannical and 9, at 455 n. described invasions Entick, Wilkes, practices in and which assailed Huckle, by rec- colonists,'6 were endured have been also validity Atlantic, argument concerning of “On this side around, writs of assistance .general search centered warrants by smuggled used officérs for the detection of which were customs Lasson, History Development and of the Fourth goods.” N. (1937). In Feb Amendment to the United Constitution States ruary expired George 1761, all writs six months after the death of II Superior opposition petitioned the Court and Boston merchants represented granting merchants to the new writs. The were Otis, Jr,, in the who later became a leader movement James independence. large audience in the court room completely

“Otis electrified the policy England’s his denunciation of toward the Colonies with whole argument against general Adams, then his warrants. John with twenty-six years yet young age a less than ad- man and not bar, many years spectator, mitted to the a later described the was oft-quoted say manner, scene these T do in the most solemn words: against that Mr. Otis’s oration into Writs Assistance breathed Everyman this nation the breath of life.’ flame of fire! He‘was go appeared away, did, ready of a crowded audience to me to as I to take arms Writs of Assistance. Then and there ' primary as the ognized abuses which ensured prominent place Warrant Bill Rights. Clausé our See Landynski, Supreme J. Search and Seizure and the (1966). History Court '28-48 N. De- Lasson, The velopment of the to the United .Fourth Amendment Note, States 43-78 Constitution Warrantless (1937); A Searches-In Return To-The Chimel:. Light Original 11 Ariz. L. Understanding, Rev. 460-476 As illustrated a flood of Term, cases before us this Tatum, e. g., Laird v. Gelbard v. United 71-288; No. States, Egan, States 71-110; 71-263; No. No. United Caldwell, States v. States United No. 70-57; Gravel, Mandel, No. 71-1026; Kleindienst v. v. No. 71-16;. currently we are in the, throes of another national hysteria seizure resembling the paranoia, which The Alien and Acts, surrounded Sedition. Palmer Raids, McCarthy and the era. Those who register petition dissent or who their governments for subjected scrutiny redress by are grand juries,7 by the FBI,8 by military. even Their are in- associates 9 of..opposition first scene arbitrary to the claims of Great Britain. Then and Independence there the child years, was born. In 15 ” namely 1776, grew manhood, he and declared himself free.’ ' Id., at 58-59. 7 Cerruti, See Donner & Jury The Grand Network: How the Nixon Administration Has Secretly Perverted A Traditional Safe guard s, Of Rig! Individual (1972). 214 The Nation 5 See also United Caldwell, States v. 1971, O. 70-57; T. No. United States v. Gravel, 1971, O. T. 71-1026; No. Gelbard v. United States and Egan, 1971, States v. O. T. Nos. and And 71-263. 71-110 Times, July see N. Y. 15, 1971, p. 6, (grand jury col. 1 investigation Y.N. Times published Pentagon Papers). staff which g., 8 E. Times, April N..Y. 12, 1970, 1, p. (“U. 2 col. S. To Tighten Surveillance of Radicals”); Times, N. 14, 1969, Y. Dec. p. 1, (“F. col. B. Bugs I.’s Informants and Collect Data On Black Panthers”); Washington Post, May 12, 1972, D21, p. col. 5 (“When Calls, the FBI Everybody' Talks”); Washington Post, telephones their and bugged are Their homes terrogated. by govern- secret befriended They are wiretapped. are ques- are loyalty patriotism Their ment informers.10 ; Targets”) Are FBI (“Black Activists B15, 16, 1972, p. col. May (“Bedroom B13, 17, 1972, col. 5 May p. Post, Washington investiga- And, concerning an FBI Files”). Sharpens FBI Peeking the Gov- critical of correspondent Schorr, television tion of Daniel 95, 4; N. Y. 11, 1971, Times, p. col. Nov. ernment, N. Y. see bugging wiretapping and 13, 1. For-the 12,1971, p. col. Times, Nov. Kennedy Navasky, FBI, see King V. Luther of Dr. Martin Eleanor wiretapping of Mrs. (1971). For 135-155 Justice. Meyer, see Theoharis & FBI L. John Lewis Roosevelt Eavesdropping: For Electronic Security” Justification The “National 749, Wayne 760-761 Exception, 14 L. Rev. An Elusive 71-288; Federal Data Tatum, T. 1971, see also No. O. See Laird Hearings Sub Rights, before Banks, Computers and the Bill of on the Committee Rights of the Senate on Constitutional committee 1972, Times, (1971); Judiciary, Cong., Feb. 92d 1st Sess. N.Y. p. 1, 3. col. through security reasons for national have been used “Informers what century. They deployed were combat out twentieth during the from perceived internal 'threat radicals an Communism, groups early began fears to focus on 1920’s. When Party were the Communist thought to have some connection with intense Party so itself was heavily infiltrated. Infiltration one informant agent a ratio of former FBI estimated one has shifted recently, every attention members in 1962. More 5.7 of because groups. part In rights civil to militant antiwar and throughout university students groups among support for such campus. ubiquitous on country, become informers seem to have was use of informers insight scope-of the current into the Some early in stolen Papérs, FBI documents provided by the Media dis Pennsylvania. papers Media, in 1971 from a Bureau office at resisters war of infiltrate a conference attempts FBI to close National of 1969,.and convention College August in —Haverford FBI They reveal in June 1970. of Black Students Association .also apart- to bill collectors informers, ranging from 'to recruit endeavors black, in surveillance develop constant janitors, an ment effort 8, Times, April Y. organizations’ [N. and New Left communities in- community, Philadelphia’s black 1971, p. 22, In col. 1]. Congress ‘including offices buildings range stance, whole of tioned.11 who Ervin, Senator Sam has chaired hearings military on of civilian dissidents, warns “it is an exaggeration that talk in terms of hundreds of thousands of . . . dossiers.” Senator as Kennedy, supra, méntioned found “the frighten- ing possibility of conversations untold thou- sands being are on monitored devices.” More secret Also, privacy. than our implicated. at stake is the reach of the power Government’s its intimidate critics.

When the attempts Executive to excuse these tactics essential its internál subversion, we defense are obliged' to remind it, without apology, of this Court’s long commitment the preservation of the Bill of.Eights from the corrosive environment of precisely expedi- such Equality, Racial Leadership' Southern Christian Conference the Black singled Coalition’ [and] out [ibid.] for surveillance by building employees and working other similar informers for the Note, FBI.” Developments Security In The Law—The National Interest Liberties, 1130, and Civil L. 1272-1273 Harv. Rev. impersonation journalists For accounts police, by agents FBI gain dissidents,, and in order to the confidences of soldiers see Under Pressure, Report Press Freedoms Cen of the Twentieth tury 29-34, Fund Task Force on the and the Press Government (1972), Army political 86-97 For revelation of infiltration organizations Senators, Congressmen, spying on Governors Rights,. Hear Banks, Computers see Federal the Bill of Data Rights ings on Senate before Subcommittee Constitutional (1971) (discussed Judiciary, Cong., 1st Committee on the 92d Sess: my in Williamson v. United dissent from the denial certiorari 1026). suggestion States, Among Papers the Media was the 405 U. S. stepped up in investigation of dissidents be the FBI in these circles and paranoia endemic order to “‘enhance the [to] agent FBI get point across there is an behind further serve to ” 1971, 33, Times, 25, p. every March col. mailbox.’ N. Y. 1. (Senate Times, 8, 1972, peace g., p. Feb. col. 8 11 E. N. Y. abetting said, by adviser, aiding and presidential to be advocates enemy). Sam Ervin Laird Amicus curiae brief submitted Senator Tatum, 71-288, 1971, p. O. T. 8. No. Whitney said, concurring As Brandéis ents.13 Justice won 357, 377: “Those who California, 274 U. v. S. not cowards. by were independence our revo’.ition did political change. They fear They did not liberty.” Chief Justice exalt order at the cost Bobel, v. way in United put States Warren de concept of ‘national 258, 389 U. S. 264: “[T]his justifying in itself, an end fense’ cannot deemed Implicit promote goal. . such power designed .. defending notion of defense’ is the the term ‘national . apart. this Nation . . values and ideas which set those ironic in the name of if, It would indeed be national . . . those the subversion of defense, we would sanction the defense of the Nation liberties . . which [make] worthwhile.” a barrier

The Clause has in- stood Warrant by privacies into the of life. But trusions officialdom if were to permit suspected that barrier lowered sub- now pillaged versives’ most intimate conversations to be then why could not secretly their abodes or mail be searched by authority? so'terrifying same To defeat a claim power only by inherent we need enduring stand values served Fourth Amendment. we stated As Coolidge Term in last v. New Hampshire, 403 443, U. S. “In unrest, 455: times of whether caused crime or racial conflict or fear of internal subversion, -this basic law g., E. New States, York Times Co. v. 713; 403 U. S. McCormack, Powell v. Bobel, United States v. 486; 395 U. S. 258, 264; Aptheker Secretary State, 500; Bag U. v. S. 378 U. S. gett Bullitt, Youngstown v. Sheet & Tube Co. v. 360; 377 U. S. Sawyer, Duncan 579; 343 U. S. Kahanamoku, v. 304; 327 U. S. Steer, Jonge White v. Oregon, De 304; 327 U. S. 353, v. 299 U. S. parte Milligan, Ex 365; Harmony, 2; 4 Wall. Mitchell 13 How. Note, Security 115. Wiretap”: “National Preroga Presidential Responsibility, tive or Judicial 45 S. Cal. L. Rev. 907-912 and the values represents may appear unrealistic that.it to some. ‘extravagant’ But values were those of the authors of our fundamental constitutional concepts. In not unlike altogether they times 'our own won ... a right personal arbitrary intru If sions .... times have changed, reducing everyman’s , scope pleases to do he in an urban and industrial as . world,- the changes, have made the served.by values Fourth more, Amendment less, important.” We much, have as or more to fear from the erosion of our privacy sense of independence by the omnipresent electronic ear of the Government we do from the likelihood that fomenters of upheaval domestic will modify our form of governing.14 my I continue in extremely belief that it would be difficult to write a search specifically naming particular warrant con versations to be attempt therefore such would .seized general amount warrant, very a abuse condemned Fourth said, dissenting States, Amendment. As I in Osborn v. United 385 U. S. lay 353: “Such devices dragnet down a which indis criminately sweeps in scope, all conversations within its without regard to the conversations, nature of the participants. or the A authorizing warrant general such devices is no different from the warrants the Fourth Amendment prohibit.” intended

.334 J., DOUGLAS, OF TO OPINION

APPENDIX CONCURRING 1969-1970 BUGGING AND WIRETAPPING FEDERAL 1970 Year Number' 6 2 8,100 20,800 , Days in 2 Use 8,100 113 z n & ^[00] (Rounded) Minimum 180 Days in (Rounded) Maximum Use 2,363 i— t—i si r* 03 030 ( h Ratio Executive Court Minimum 17.5* 3.4 Days Used Ordered Ordered: (cid:127)R W5 H O CO * Devices Ordered Court 15.4 13.1 Average Per Minimum Executive Days in Use 86.2 71.7 Device Devices Maximum Ordered 221.3 200.0 1970, since for than those meaningful less are * Ratios stage in 1969. initial in its program court-ordered Source: to Mardian Robert Attorney General Assistant from (1) Letter figures with-' Source 1971. Kennedy, March M. Edward Senator Department. request of Justice held at Courts, for 1969 U. S.- Office Administrative Reports (2) 1970. and judgment. in the concurring White, Justice

Mr. charging indictment two-count out of a This arises case property. injury to Government injure conspiracy codefend- and two Plamondon charged I Robert Count injure person a fourth with conspiring with ants II charged Count dynamite. with property Government Govern injuring dynamiting with alone Plamondon The defendants Michigan. Arbor, in Ann property ment disclose, among States the United compel moved to electronic-surveil logs any other,things, records or coconspirators, unindicted them,'at directed lance at coconspirators. defendants of the any premises at determine, whether hearing for a moved They also the evidence tainted disclosed had electronic surveillance and which was based jury indictment grand On which They asked trial. to use at intended the Government de were taint if such of the indictment for dismissal United motion, Opposing to exist. termined Attorney General an affidavit submitted States Pla- defendant disclosing “[t]he States were conversations which participated, mondon has monitoring who were agents Government overheard intelli gather employed being were wiretaps which na the necessary protect deemed information gence attack organizations attempts domestic from tion Government,” the structure existing subvert and the by the approved expressly wiretaps having been the con intercepted the records of The Attorney General. reflecting the memorandum of the copies and versations under seal were submitted approval Attorney General’s inspection.1 in camera the Court’s solely for concluded: Attorney affidavit The General’s to disclose the interest prejudice national certify that it “I would. to the concerning surveillances other than these particular facts Accordingly, exhibit referred to herein the sealed in camera. court inspection solely camera and a for the court’s in being submitted Court, position by the District As characterized monitoring that the electronic States was judicial warrant was without Plamondon’s conversations power President to safe- lawful. exercise of security. granted The Court guard national District the motion of the President had defendants, holding that no power- employ constitutional electronic without warrant to gather information about domestic organizations. probable judicial Absent au- cause thorization, challenged wiretap Plamondon’s infringed Fourth Amendment rights. The ordered the court Gov- ernment to disclose to defendants records .monitored conversations hearing directed to determine the existence held of taint either in the in- or in the evidence to be introduced at trial. dictment petition Government’s require mandamus to the District Court to vacate its order was denied of Appeals. Court (CA6 2d 1971). F. That court held that the Fourth Amendment barred warrantless electronic surveillance of domestic organizations even if at the direction of the President. It agreed with the Dis- trict Court that because the wiretaps involved were therefore constitutionally infirm, the United States must turn over to defendants the records of overheard con- versations- for the purpose of determining whether the Government’s evidence tainted.

I would affirm the Court of Appeals but on the stat- utory ground urged by defendant-respondents (Brief 115) without reaching any intimating views with respect copy of the sealed exhibit is not being furnished to the defendants. I request would court, at the hearing conclusion its on this matter, place sealed exhibit in a sealed envelope and return it to the Department of Justice where it will be retained under seal so that may be submitted appellate court review this matter.” App. 20-21.

337 District the by both decided issue constitutional the to Appeals. of Court the and Court Safe Control Crime Omnibus the III of Title forbids, 2610-2520, §§C. 18 U. S. of Act Streets for actions civil penalties criminal of pain under under not eavesdropping or wiretapping damages, obtain for procedures specified with accordance taken Sec surveillance. authorizing the warrants judicial ing against prohibition a general (1) establishes 2511 tion specifi otherwise as “[ejxcept eavesdropping electronic provide sections Later in the statute. cally provided” official of authorization judicial procedures detailed pro these when communications; oral interceptions to subject not interception followed are cedures (2), how- Section (1). §2511 prohibitions pro general in which situations other specifies evér, addition, In apply. do § hibitions t: a th (3) provides § in section or chapter in this contained “Nothing (48 Stat. Act of Communications of the .605 the constitutional limit 605) shall S. 1143; U. C.. he as measures of,the such take to President power actual against Nation protect to necessary deems a for- acts hostile other or attack potential or informa- intelligence foreign to obtain power, eign United security of essential deemed tion information national protect toor States, Nor shall activities. intelligence foreign against be deemed chapter in this contained anything President power constitutional 'limit protect necessary deems he measures such take the overthrow against States or means, unlawful or other by force Government danger present clear any other con- Government. existence structure any of wire oral tents communication intercepted by authority of the President in the exercise powers foregoing in be received evidence any trial hearing, or other proceeding only where such interception reasonable, was and shall not be other- used except wise or. disclosed as is to. necessary implement power.” that

It is this subsection that lies at the heart of this case.

The interception here was judicial warrant, without it was hot by covered the provisions, of 2511 (2) § and it is too for argument clear that it- illegal under is (1) § 2511 unless it by is saved (3). §2511 The majority asserts that § 2511 (3) is a “disclaimer” but not an “exception.” however,it But is labeled, it is apparent from the face of the section and legislative its history that if this inter- ception one is of those described in § 2511 (3j, it is not reached by the statutory ban bn unwarranted electronic eavesdropping.2 defendants in the

The. District Court moved for the production of the logs, of electronic surveillance to which they might have been subjected. "The Govern- 2 I agree cannot with the majority’s'analysis of import the. of (3). Surely; §2511 Congress meant at that least aif court deter mined-that specified circumstances could President constitutionally intercept communications without warrant, general §2511.(1) ban of would apply. not But the limitátion on the applicability (1) open-ended: was not §2511 it was con fined to those situations §2511(3) that specifically described. Thus; even assuming the constitutionality of a" warrantless surveil lance by authorized the President private uncover or official graft by forbidden federal interception illegal would be statute the (1) under §2511 is not' the type presidential, becáusé action by, saved provision Act As stated §2511 infra, text and n. the United does States not Congress claim that powerless require warrants for surveillances that the President otherwise would be barred the Fourth Amendment from not undertaking warrant. without Plamondon had that conversations responded melit turnover position but took intercepted been inter- necessary because the was records for the Govern- Clearly, law. with the complied ception necessary first, to demonstrate, prevail it was ment to statutory subject to the was not involved interception because wiretapping judicial approval requirement and, (3); of 2511 scope § was within the surveillance wire- forbid the warrantless -Act did not if the secondly, Fourth with the that the-surveillance tap, consistent Amendment. in case that no claim this has made

The United States the constitutionally applied may to statute the to it denied Nor has that at issue here.3 surveillance Arg. 13-14: of Oral See Tr. Congress could forbid your that “Q, it answer I take ... from power to do you suggest he has doing from what the President the. this in case?. ' issue is not Attorney That “Mr. Mardian General]: [Assistant before this Court- suggest that is. “Q. Well, my will question I next would — President?' Congress forbid the you say, though, that could

Would by court under rule announced Mardian: I think “Mr. Congress Colony Catering certain limits the could that within in in . severely power of President this area. restrict the Says, .Attorney “Q. Well, Congress then, that assume let’s Attorney -General, or the President authorize General Attorney carry if the specific out electronic surveillance situations danger present there is a clear and certifies that General the United States? Congress already that, provided “Mr. I has' Mardianr think . and- Well, say power

“Q. you Congress would have the would -that to situations where those conditions were satisfied!? limit surveillances Yes, that, Mardian: I would concur in Honor.” “Mr. would —I Your bill, colloquy appearing appearing A the debates on'the at 114 14750-14751, Cong. that some considered Rec. indicates Senators (3) as,merely stating an intention not to interfere with the §2511 might powers constitutional the President otherwise have to sup must either be comply with the Act the surveillance ex ported by within the of the fall bounds warrant pr I read ceptions provided by (3). Nevertheless, § 2511 opinions Ap of-the District Court and the Court of to., court peals, stopped inquire neither whether the chair interception but lenged illegal was statute under proceeded directly to without constitutional issue to the time-honored rule adverting that courts should abjure except necessary constitutional where to de issues cision of Tennessee case before them. Ashwander Valley Authority, (1936) (con 297 U. 346-348 S. I curring opinion). Because conclude that on the record before us the undertaken the Government in this case under I illegal itself, the statute find it unnecessary, and therefore improper, consider or decide the constitutional questions which courts below improvidently reached. statutory threshold question is simply put: Was

the electronic surveillance by the Govern- undertaken ment this case a measure- necessary by deemed implement President either the first or second branch exception carved out (3) to the general § requirement of a warrant?

The answer, it to me, seems must turn on the affidavit Attorney of the General offered the United States opposition to defendants’ motion to disclose surveillance apparent records. It is that there is nothing whatsoever in this affidavit suggesting that the surveillance was engage in warrantless electronic Department But the surveillance. Justice, said, it participated was drafting (3) § the and there is no legislative indication in the history that there" was any thought claim or supposed powers that the of the President beyond reached those described any section. In ease, in.the it seems clear, congressional that the policy of noninterference was limited to the terms of 2511 § (3) the § branch first within

undertaken attack, to foreign protect against is,- to that exception, national protect or to intelligence foreign gather monitoring that was assertion The sole information. information intelligence gather employed was issue at attempts from nation protect necessary “deemed exist- and subvert to attack organizations domestic 20. App. Government.” of the ing structure characterization from Neither can I-conclude recog- exception here fell within wiretap employed utterly for it (3); §of sentence nized the second that Con- judgment responsibility fails to assume necessary to was the surveillance gress demanded: means or unlawful by force or other overthrow prevent to the dangér present clear and other that there The affidavit of the existence Government. or structure subvert; it makes or attack attempts to speaks.only no articulates unlawfulness; to force no reference any clear involved attempts conclusion that or structure existence .to the present danger Government. measured affidavit when. shortcomings

The Indeed, the United States patent. are (3) against § specific inquiry less. conceded no argument in oral think the' you “Do was: counsel Government put Act?” Streets Safe affidavit, alone, satisfies standing We sir. “No, Atterney General answered The Assistant .” Tr. of itself . . . Oral rely the affidavit upon do not 15.4 -Arg. their case however, seek save ciounsel,

Government submitted in camera exhibit to the by reference Arg. 17: of Oral 4 See also Tr. was what this contained camera document “Q. the in If ... all Act Streets comply the Safe contained, .with it would affidavit ? that, Your Honor.” concur in I would “Mr. Mardian: - supplement District Court Attorney the General's affidavit.5- It is said that the exhibit includes the re quest for wiretap approval Attorney submitted to the that the General, request asserted the need avert a present clear and danger the structure and existence of the Government, and that Attorney the General approval endorsed his on the I request.6 But' uncon am the vinced mere endorsement Attorney of the Gen eral on the. request approval for submitted to him must be taken as Attorney the own opinion General’s that the wiretap necessary to . avert a present clear and danger to the existence structure of the Government 5The Government appears to have shifted respect. ground n Inits Court, initial brief to this quoted Attorney. Government said, affidavit General’s and then qualification, without “These were grounds thé upon Attorney which the authorized the General sur-* present veillance case.”. Brief Moreover, for United States 21. counsel for the Government stated argument oral "that a.t in camera submission justification was not intended as a for the authorization, but simply . proof a of the fact that the [as] authoriza- granted tion had been Attorney States, General of the United over signature.” his own Arg. Tr. of Oral 6-7. - argument, Later-at oral the Government however, said: “.[T]he affidavit was never intended as the basis for justifying the sur- question. - veillance in ... justification, again suggest I only it is partial a justification, is contained in the in carnera exhibit which was submitted Judge Keith. . . . do not We n rely upon the affidavit itself but the in camera exhibit.” Tr. of Oral Arg. 14-15. And reply brief, its says flatly: Government “Those documents, [in and not affidavit, camera] are proper basis determining ground for upon Attorney which the General Reply acted.”. Brief United States 9. 6Procedures in practice request at the time here in issue apparently resulted in Attorney rnerely. General’s countersigning request which- asserted a need for a wiretap. We are told that under present procedures Attorney General makes express an finding written of clear present danger to the structure and ex istence of the Government before he authorizes tap. Tr. of Oral Arg. 17-18. specifically in court filed later an affidavit when, in at interception of the purposes the characterizing approval, the prior for his the impliedly grounds least was undertaken tap only the said Attorney General necessary protect to thought intelligence secure to structure,of the subvert attack.and to attempts against of approval Attorney General’s If the Government. cognizable judicially be given interception to the to seems have meaning he from the different meaning obvi in court, there filed in his affidavit to it ascribed Court. in District the proceedings be further ously must first in the proceed to I reluctant Moreover, am either camera material in the to examine instance n meas- necessary aas surveillance the. reject ór sustain §2511(3). to in. referred dangers the avert to ure requirement warrant the from excepted Congress What assume would President which surveillance awas pro- to measure essential deeming an for responsibility can judge No danger.. present against clear tect n satisfy this requirement. congressional determination, necessary threshold

Without the terms contrary to my opinion, in is, interception con- prohibition therefore subject statute'and of the fruits use § tained any at as evidence electronic warrantless trial.7 for, reasons interrelated additional two There remain if it First, even issue. constitutional reaching the net purported General Attorney determined were intercepted, been has communication any or oral wire “Whenever evidence and no communication of such the contents part no trial, hearing, any in evidence received therefrom derived department, jury, court, grand in or before proceeding other or or other body, legislative committee, regulatory officer, agency, political subdivision State, States, a- United authority in violation would be that information the disclosure if thereof 2515 C. U. S. chapter,” § purposes exempt an electronic

authorize surveillance for irom the general provisions there would re- Act, main the issue whether discretion au- properly his thorized. The States concedes that the act of United Attorney wiretap General authorizing a warrantless is subject judicial review some Brief extent, 21-23, improvident States and it seems proceed to constitutional questions until it x& determined that Act itself does not bar the interception question. here

Second, and again assumption on the that the surveil- lance exception providec here involved-fell within the by §2511 no (3), constitutional issue need be reached if this case the fruits the wiretap were inadmissible on statutory grounds in the proceedings pending criminal against respondent Plamondon. (3) Section 2511 itself that states contents of wire or oral communi- “[t]he any intercepted cation by authority of President exercise of foregoing powers may be received in evi- dence in trial hearing, or other proceeding only where such interception was reasonable, shall not be otherwise used or except disclosed is necessary implement power.” (Emphasis added.) There has been no determination the District Court it would be to use reasonable the fruits of wiretap against Plamondon or that it would be necessary to do so implement purposes for which tap authorized.

My own again, is conclusion, that, as long as non- statutory constitutional, grounds for excluding the evi- dence or its fruits have not been disposed is of, improvident to reach the constitutional issue.

I would thus affirm the -judgment of the Court of Appeals unless the Court is prepared to reconsider the - necessity for an adversary, rather in camera, than an with hearing respect to taint. If in camera proceedings are sufficient and no taint discerned the judge, this case is over, whatever the legality tap.

Case Details

Case Name: United States v. United States District Court for the Eastern District of Michigan

Court Name: Supreme Court of the United States

Date Published: Jun 19, 1972

Citation: 407 U.S. 297

Docket Number: 70-153

Court Abbreviation: SCOTUS