407 U.S.

297
92 S.Ct. 2125
32 L.Ed.2d 752

UNITED STATES, Petitioner,

v.
UNITED STATES DISTRICT COURT FOR the EASTERN
DISTRICT OF MICHIGAN, SOUTHERNDIVISION, et al.;
Lawrence Robert 'Pun' PLAMONDON et al., Real Parties
inInterest.
No. 70153.
Argued Feb. 24, 1972.
Decided June 19, 1972.

Syllabus
The United States charged three defendants with conspiring to destroy,
and one of them with destroying, Government property. In response to the
defendants' pretrial motion for disclosure of electronic surveillance
information, the Government filed an affidavit of the Attorney General
stating that he had approved the wiretaps for the purpose of 'gather(ing)
intelligence information deemed necessary to protect the nation from
attempts of domestic organizations to attack and subvert the existing
structure of the Government.' On the basis of the affidavit and
surveillance logs (filed in a sealed exhibit), the Government claimed that
the surveillances, though warrantless, were lawful as a reasonable exercise
of presidential power to protect the national security. The District Court,
holding the surveillances violative of the Fourth Amendment, issued an
order for disclosure of the overheard conversations, which the Court of
Appeals upheld. Title III of the Omnibus Crime Control and Safe Streets
Act, which authorizes court-approved electronic surveillance for specified
crimes, contains a provision in 18 U.S.C. 2511(3) that nothing in that
law limits the President's constitutional power to protect against the
overthrow of the Government or against 'any other clear and present
danger to the structure or existence of the Government.' The Government
relies on 2511(3) in support of its contention that 'in excepting national
security surveillances from the Act's warrant requirement, Congress
recognized the President's authority to conduct such surveillances withour

prior judicial approval.' Held:

1. Section 2511(3) is merely a disclaimer of congressional intent to define
presidential powers in matters affecting national security, and is not a
grant of authority to conduct warrantless national security surveillances.
Pp. 301308.
2. The Fourth Amendment (which shields private speech from
unreasonable surveillance) requires prior judicial approval for the type of
domestic security surveillance involved in this case. Pp. 323324.
(a) The Government's duty to safeguard domestic security must be
weighed against the potential danger that unreasonable surveillances pose
to individual privacy and free expression. Pp. 314315.
(b) The freedoms of the Fourth Amendment cannot properly be
guaranteed if domestic security surveillances are conducted solely within
the discretion of the Executive Branch without the detached judgment of a
neutral magistrate. Pp. 316318.
(c) Resort to appropriate warrant procedure would not frustrate the
legitimate purposes of domestic security searches. Pp. 318321.
6 Cir., 444 F.2d 651, affirmed.
Robert C. Mardian, Pasadena, Cal., for petitioner.
William T. Gossett, Detroit, Mich., for respondents United States District
Court for the Eastern District of Mich. and District Judge Damon J. Keith.
Arthur Kinoy, Newark, N.J., for respondents John Sinclair, Lawrence
'Pun' Plamondon and John Waterhouse Forrest.
Mr. Justice POWELL delivered the opinion of the Court.

The issue before us is an important one for the people of our country and their
Government. It involves the delicate question of the President's power, acting
through the Attorney General, to authorize electronic surveillance in internal
security matters without prior judicial approval. Successive Presidents for more
than one-quarter of a century have authorized such surveillance in varying
degrees,1 without guidance from the Congress or a definitive decision of this
Court. This case brings the issue here for the first time. Its resolution is a matter
of national concern, requiring sensitivity both to the Government's right to

protect itself from unlawful subversion and attack and to the citizen's right to be
secure in his privacy against unreasonable Government intrusion.
2

This case arises from a criminal proceeding in the United States District Court
for the Eastern District of Michigan, in which the United States charged three
defendants with conspiracy to destroy Government property in violation of 18
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 surveillance information and to conduct a hearing
to determine whether this information 'tainted' the evidence on which the
indictment was based or which the Government intended to offer at trial. In
response, the Government filed an affidavit of the Attorney General,
acknowledging that its agents had overheard conversations in which
Plamondon had participated. The affidavit also stated that the Attorney General
approved the wiretaps 'to gather intelligence information deemed necessary to
protect the nation from attempts of domestic organizations to attack and subvert
the existing structure of the Government.'2 The logs of the surveillance were
filed in a sealed exhibit for in camera inspection by the District Court.

On the basis of the Attorney General's affidavit and the sealed exhibit, the
Government asserted that the surveillance was lawful, though conducted
without prior judicial approval, as a reasonable exercise of the President's
power (exercised through the Attorney General) to protect the national security.
The District Court held that the surveillance violated the Fourth Amendment,
and ordered the Government to make full disclosure to Plamondon of his
overheard conversations. 321 F.Supp. 1074 (ED Mich.1971).

The Government then filed in the Court of Appeals for the Sixth Circuit a
petition for a writ of mandamus to set aside the District Court order, which was
stayed pending final disposition of the case. After concluding that it had
jurisdiction,3 that court held that the surveillance was unlawful and that the
District Court had properly required disclosure of the overheard conversations,
444 F.2d 651 (1971). We granted certiorari, 403 U.S. 930, 91 S.Ct. 2255, 29
L.Ed.2d 708.

* Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C.
25102520, authorizes the use of electronic surveillance for classes of crimes
carefully specified in 18 U.S.C. 2516. Such surveillance is subject to prior

court order. Section 2518 sets forth the detailed and particularized application
necessary to obtain such an order as well as carefully circumscribed conditions
for its use. The Act represents a comprehensive attempt by Congress to
promote more effective control of crime while protecting the privacy of
individual thought and expression. Much of Title III was drawn to meet the
constitutional requirements for electronic surveillance enunciated by this Court
in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967),
and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
7

Together with the elaborate surveillance requirements in Title III, there is the
following proviso, 18 U.S.C. 2511(3):

'Nothing contained in this chapter or in section 605 of the Communications Act

of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of
the President to take such measures as he deems necessary to protect the Nation
against actual or potential attack or other hostile acts of a foreign power, to
obtain foreign intelligence information deemed essential to the security of the
United States, or to protect national security information against foreign
intelligence activities. Nor shall anything contained in this chapter be deemed
to limit the constitutional power of the President to take such measures as he
deems necessary to protect the United States against the overthrow of the
Government by force or other unlawful means, or against any other clear and
present danger to the structure or existence of the Government. The contents of
any wire or oral communication intercepted by authority of the President in the
exercise of the foregoing powers may be received in evidence in any trial
hearing, or other proceeding only where such interception was reasonable, and
shall not be otherwise used or disclosed except as is necessary to implement
that power.' (Emphasis supplied.)

The Government relies on 2511(3). It argues that 'in excepting national

security surveillances from the Act's warrant requirement Congress recognized
the President's authority to conduct such surveillances without prior judicial
approval.' Brief for United States 7, 28. The section thus is viewed as a
recognition or affirmance of a constitutional authority in the President to
conduct warrantless domestic security surveillance such as that involved in this
case.

10

We think the language of 2511(3), as well as the legislative history of the

statute, refutes this interpretation. The relevant language is that:

11

'Nothing contained in this chapter . . . shall limit the constitutional power of the

President to take such measures as he deems necessary to protect . . .'

12

Against the dangers specified. At most, this is an implicit recognition that the
President does have certain powers in the specified areas. Few would doubt
this, as the section refersamong other thingsto protection 'against actual or
potential attack or other hostile acts of a foreign power.' But so far as the use of
the President's electronic surveillance power is concerned, the language is
essentially neutral.

13

Section 2511(3) certainly confers no power, as the language is wholly

inappropriate for such a purpose. It merely provides that the Act shall not be
interpreted to limit or disturb such power as the President may have under the
Constitution. In short, Congress simply left presidential powers where it found
them. This view is reinforced by the general context of Title III. Section
2511(1) broadly prohibits the use of electronic surveillance '(e)xcept as other
wise specifically provided in this chapter.' Subsection (2) thereof contains four
specific exceptions. In each of the specified exceptions, the statutory language
is as follows:

14

'It shall not be unlawful . . . to intercept' the particular type of communication

described.4

15

The language of subsection (3), here involved, is to be contrasted with the

language of the exceptions set forth in the preceding subsection. Rather than
stating that warrantless presidential uses of electronic surveillance 'shall not be
unlawful' and thus employing the standard language of exception, subsection
(3) merely disclaims any intention to 'limit the constitutional power of the
President.'

16

The express grant of authority to conduct surveillances is found in 2516,

which authorizes the Attorney General to make application to a federal judge
when surveillance may provide evidence of certain offenses. These offenses are
described with meticulous care and specificity.

17

Where the Act authorizes surveillance, the procedure to be followed is

specified in 2518. Subsection (1) thereof requires application to a judge of
competent jurisdiction for a prior order of approval, and states in detail the
information required in such application.5 Subsection (3) prescribes the
necessary elements of probable cause which the judge must find before issuing
an order authorizing an interception. Subsection (4) sets forth the required
contents of such an order. Subsection (5) sets strict time limits on an order.

Provision is made in subsection (7) for 'an emergency situation' found to exist
by the Attorney General (or by the principal prosecuting attorney of a State)
'with respect to conspiratorial activities threatening the national security
interest.' In such a situation, emergency surveillance may be conducted 'if an
application for an order approving the interception is made . . . within fortyeight hours.' If such an order is not obtained, or the application therefor is
denied, the interception is deemed to be a violation of the Act.
18

In view of these and other interrelated provisions delineating permissible

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

19

The legislative history of 2511(3) supports this interpretation. Most relevant

is the colloquy between Senators Hart, Holland, and McClellan on the Senate
floor:

20

'Mr. Holland. . . . The section (2511(3)) from which the Senator (Hart) has read
does not affirmatively give any power. . . . We are not affirmatively conferring
any power upon the President. We are simply saying that nothing herein shall
limit such power as the President has under the Constitution. . . . We certainly
do not grant him a thing.

21

'There is nothing affirmative in this statement.

22

'Mr. McClellan. Mr. President, we make it understood that we are not trying to
take anything away from him.

23

'Mr. Holland. The Senator is correct.

24

'Mr. Hart. Mr. President, there is no intention here to expand by this language a
constitutional power. Clearly we could not do so.

25

'Mr. McClelland. Even though intended, we could not do so.

'Mr. Hart. . . . However, we are agreed that this language should not be

26

27

'Mr. Hart. . . . However, we are agreed that this language should not be
regarded as intending to grant any authority, including authority to put a bug on,
that the President does not have now.
'In addition, Mr. President, as I think our exchange makes clear, nothing in
section 2511(3) even attempts to define the limits of the President's national
security power under present law, which I have always found extremely vague .
. . Section 2511(3) merely says that if the President has such a power, then its
exercise is in no way affected by title III.'7 (Emphasis supplied.) One could
hardly expect a clearer expression of congressional neutrality. The debate above
explicitly indicates that nothing in 2511(3) was intended to expand or to
contract or to define whatever presidential surveillance powers existed in
matters affecting the national security. If we could accept the Government's
characterization of 2511(3) as a congressionally prescribed exception to the
general requirement of a warrant, it would be necessary to consider the question
of whether the surveillance in this case came within the exception and, if so,
whether the statutory exception was itself constitutionally valid. But viewing
2511(3) as a congressional disclaimer and expression of neutrality, we hold that
the statute is not the measure of the executive authority asserted in this case.
Rather, we must look to the constitutional powers of the President.

II
28

It is important at the outset to emphasize the limited nature of the question

before the Court. This case raises no constitutional challenge to electronic
surveillance as specifically authorized by Title III of the Omnibus Crime
Control and Safe Streets Act of 1968. Nor is there any question or doubt as to
the necessity of obtaining a warrant in the surveillance of crimes unrelated to
the national security interest. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,
19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18
L.Ed.2d 1040 (1967). Further, the instant case requires no judgment on the
scope of the President's surveillance power with respect to the activities of
foreign powers, within or without this country. The Attorney General's affidavit
in this case states that the surveillances were 'deemed necessary to protect the
nation from attempts of domestic organizations to attack and subvert the
existing structure of Government' (emphasis supplied). There is no evidence of
any involvement, directly or indirectly, of a foreign power.8

29

Our present inquiry, though important, is therefore a narrow one. It addresses a

question left open by Katz, supra, 389 U.S., at 358 n. 23, 88 S.Ct., at 515:

30

'Whether safeguards other than prior authorization by a magistrate would

satisfy the Fourth Amendment in a situation involving the national security . .

..'
31

The determination of this question requires the essential Fourth Amendment

inquiry into the 'reasonableness' of the search and seizure in question, and the
way in which that 'reasonableness' derives content and meaning through
reference to the warrant clause. Coolidge v. New Hampshire, 403 U.S. 443, 473
484, 91 S.Ct. 2022, 20422047, 29 L.Ed.2d 564 (1971).

32

We begin the inquiry by noting that the President of the United States has the
fundamental duty, under Art. II, 1, of the Constitution, to 'preserve, protect
and defend the Constitution of the United States.' Implicit in that duty is the
power to protect our Government against those who would subvert or
overthrow it by unlawful means. In the discharge of this duty, the President
through the Attorney Generalmay find it necessary to employ electronic
surveillance to obtain intelligence information on the plans of those who plot
unlawful acts against the Government.9 The use of such surveillance in internal
security cases has been sanctioned more or less continuously by various
Presidents and Attorneys General since July 1946.10 Herbert Brownell,
Attorney General under President Eisenhower, urged the use of electronic
surveillance both in internal and international security matters on the grounds
that those acting against the Government

33

'turn to the telephone to carry on their intrigue. The success of their plans
frequently rests upon piecing together shreds of information received from
many sources and many nests. The participants in the conspiracy are often
dispersed and stationed in various strategic positions in government and
industry throughout the country.'11

34

Though the Government and respondents debate their seriousness and

magnitude, threats and acts of sabotage against the Government exist in
sufficient number to justify investigative powers with respect to them. 12 The
covertness and complexity of potential unlawful conduct against the
Government and the necessary dependency of many conspirators upon the
telephone make electronic surveillance an effective investigatory instrument in
certain circumstances. The marked acceleration in technological developments
and sophistication in their use have resulted in new techniques for the planning,
commission, and concealment of criminal activities. It would be contrary to the
public interest for Government to deny to itself the prudent and lawful
employment of those very techniques which are employed against the
Government and its lawabiding citizens.

35

It has been said that '(t)he most basic function of any government is to provide
for the security of the individual and of his property.' Miranda v. Arizona, 384
U.S. 436, 539, 86 S.Ct. 1602, 1661, 16 L.Ed.2d 694 (1966) (White, J.,
dissenting). And unless Government safeguards its own capacity to function
and to preserve the security of its people, society itself could become so
disordered that all rights and liberties would be endangered. As Chief Justice
Hughes reminded us in Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct.
762, 765, 85 L.Ed. 1049 (1941):

36

'Civil liberties, as guaranteed by the Constitution, imply the existence of an

organized society maintaining public order without which liberty itself would
be lost in the excesses of unrestrained abuses.'

37

But a recognition of these elementary truths does not make the employment by
Government of electronic surveillance a welcome developmenteven when
employed with restraint and under judicial supervision. There is,
understandably, a deep-seated uneasiness and apprehension that this capability
will be used to intrude upon cherished privacy of law-abiding citizens.13 We
look to the Bill of Rights to safeguard this privacy. Though physical entry of
the home is the chief evil against which the wording of the Fourth Amendment
is directed, its broader spirit now shields private speech from unreasonable
surveillance. Katz v. United States, supra; Berger v. New York, supra;
Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).
Our decision in Katz refused to lock the Fourth Amendment into instances of
actual physical trespass. Rather, the Amendment governs 'not only the seizure
of tangible items, but extends as well to the recording of oral statements . . .
without any 'technical trespass under . . . local property law." Katz, supra, 389
U.S., at 353, 88 S.Ct., at 512. That decision implicitly recognized that the broad
and unsuspected governmental incursions into conversational privacy which
electronic surveillance entails14 necessitate the application of Fourth
Amendment safeguards.

38

National security cases, moreover, often reflect a convergence of First and

Fourth Amendment values not present in cases of 'ordinary' crime. Though the
investigative duty of the executive may be stronger in such cases, so also is
there greater jeopardy to constitutionally protected speech. 'Historically the
struggle for freedom of speech and press in England was bound up with the
issue of the scope of the search and seizure power,' Marcus v. Search Warrants
etc., 367 U.S. 717, 724, 81 S.Ct. 1708, 1712, 6 L.Ed.2d 1127 (1961). History
abundantly documents the tendency of Governmenthowever benevolent and
benign its motivesto view with suspicion those who most fervently dispute
its policies. Fourth Amendment protections become the more necessary when

the targets of official surveillance may be those suspected of unorthodoxy in

their political beliefs. The danger to political dissent is acute where the
Government attempts to act under so vague a concept as the power to protect
'domestic security.' Given the difficulty of defining the domestic security
interest, the danger of abuse in acting to protect that interest becomes apparent.
Senator Hart addressed this dilemma in the floor debate on 2511(3):
39

'As I read itand this is my fearwe are saying that the President, on his
motion, could declarename your favorite poisondraft dodgers, Black
Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present
danger to the structure or existence of the Government.'15

40

The price of lawful public dissent must not be a dread of subjection to an

unchecked surveillance power. Nor must the fear of unauthorized official
eavesdropping deter vigorous citizen dissent and discussion of Government
action in private conversation. For private dissent, no less than open public
discourse, is essential to our free society.

III
41

As the Fourth Amendment is not absolute in its terms, our task is to examine
and balance the basic values at stake in this case: the duty of Government to
protect the domestic security, and the potential danger posed by unreasonable
surveillance to individual privacy and free expression. If the legitimate need of
Government to safeguard domestic security requires the use of electronic
surveillance, the question is whether the needs of citizens for privacy and the
free expression may not be better protected by requiring a warrant before such
surveillance is undertaken. We must also ask whether a warrant requirement
would unduly frustrate the efforts of Government to protect itself from acts of
subversion and overthrow directed against it.

42

Though the Fourth Anendment speaks broadly of 'unreasonable searches and

seizures,' the definition of 'reasonableness' turns, at least in part, on the more
specific commands of the warrant clause. Some have argued that '(t)he relevant
test is not whether it is reasonable to procure a search warrant, but whether the
search was reasonable,' United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct.
430, 435, 94 L.Ed. 653 (1950).16 This view, however, overlooks the second
clause of the Amendment. The warrant clause of the Fourth Amendment is not
dead language. Rather, it has been

43

'a valued part of our constitutional law for decades, and it has determined the

result in scores and scores of cases in courts all over this country. It is not an
inconvenience to be somehow 'weighed' against the claims of police efficiency.
It is, or should be, an important working part of our machinery of government,
operating as a matter of course to check the 'well-intentioned but mistakenly
over-zealous executive officers' who are a party of any system of law
enforcement.' Coolidge v. New Hampshire, 403 U.S., at 481, 91 S.Ct., at 2046.
44

See also United States v. Rabinowitz, supra, 339 U.S., at 68, 70 S.Ct., at 445
(Frankfurter, J., dissenting); Davis v. United States, 328 U.S. 582, 604, 66 S.Ct.
1256, 1266, 90 L.Ed. 1453 (1946) (Frankfurter, J. dissenting).

45

Over two centuries ago, Lord Mansfield held that common-law principles
prohibited warrants that ordered the arrest of unnamed individuals who the
officer might conclude were guilty of seditious libel. 'It is not fit,' said
Mansfield, 'that the receiving or judging of the information should be left to the
discretion of the officer. The magistrate ought to judge; and should give certain
directions to the officer.' Leach v. Three of the King's Messengers, 19
How.St.Tr. 1001, 1027 (1765).

46

Lord Mansfield's formulation touches the very heart of the Fourth Amendment
directive: that, where practical, a governmental search and seizure should
represent both the efforts of the officer to gather evidence of wrongful acts and
the judgment of the magistrate that the collected evidence is sufficient to justify
invasion of a citizen's private premises or conversation. Inherent in the concept
of a warrant is its issuance by a 'neutral and detached magistrate.' Coolidge v.
New Hampshire, supra, 403 U.S. at 453, 91 S.Ct. at 2031; Katz v. United
States, supra, 389 U.S., at 356, 88 S.Ct. at 514. The further requirement of
'probable cause' instructs the magistrate that baseless searches shall not
proceed.

47

These Fourth Amendment freedoms cannot properly be guaranteed if domestic

security surveillances may be conducted solely within the discretion of the
Executive Branch. The Fourth Amendment does not contemplate the executive
officers of Government as neutral and disinterested magistrates. Their duty and
responsibility are to enforce the laws, to investigate, and to prosecute. Katz v.
United States, supra, at 359360, 88 S.Ct. at 515516 (Douglas, J.,
concurring). But those charged with this investigative and prosecutorial duty
should not be the sole judges of when to utilize constitutionally sensitive means
in pursuing their tasks. The historical judgment, which the Fourth Amendment
accepts, is that unreviewed executive discretion may yield too readily to
pressures to obtain incriminating evidence and overlook potential invasions of
privacy and protected speech.17

48

It may well be that, in the instant case, the Government's surveillance of

Plamondon's conversations was a reasonable one which readily would have
gained prior judicial approval. But this Court 'has never sustained a search upon
the sole ground that officers reasonably expected to find evidence of a
particular crime and voluntarily confined their activities to the least intrusive
means consistent with that end.' Katz, supra, at 356 357, 88 S.Ct. at 514. The
Fourth Amendment contemplates a prior judicial judgment,18 not the risk that
executive discretion may be reasonably exercised. This judicial role accords
with our basic constitutional doctrine that individual freedoms will best be
preserved through a separation of powers and division of functions among the
different branches and levels of Government. Harlan, Thoughts at a Dedication:
Keeping the Judicial Function in Balance, 49 A.B.A.J. 943944 (1963). The
independent check upon executive discretion is not satisfied, as the Government
argues, by 'extremely limited' post-surveillance judicial review.19 Indeed, postsurveillance review would never reach the surveillances which failed to result
in prosecutions. Prior review by a neutral and detached magistrate is the timetested means of effectuating Fourth Amendment rights. Beck v. Ohio, 379 U.S.
89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964).

49

It is true that there have been some exceptions to the warrant requirement.
Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969);
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); McDonald v.
United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Carroll v.
United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). But those
exceptions are few in number and carefully delineated, Katz, supra, 389 U.S., at
357, 88 S.Ct., at 514; in general, they serve the legitimate needs of law
enforcement officers to protect their own well-being and preserve evidence
from destruction. Even while carving out those exceptions, the Court has
reaffirmed the principle that the 'police must, whenever practicable, obtain
advance judicial approval of searches and seizures through the warrant
procedure,' Terry v. Ohio, supra, 392 U.S., at 20, 88 S.Ct., at 1879; Chimel v.
California, supra, 395 U.S., at 762, 89 S.Ct., at 2039.

50

The Government argues that the special circumstances applicable to domestic

security surveillances necessitate a further exception to the warrant
requirement. It is urged that the requirement of prior judicial review would
obstruct the President in the discharge of his constitutional duty to protect
domestic security. We are told further that these surveillances are directed
primarily to the collecting and maintaining of intelligence with respect to
subversive forces, and are not an attempt to gather evidence for specific
criminal prosecutions. It is said that this type of surveillance should not be
subject to traditional warrant requirements which were established to govern

investigation of criminal activity, not ongoing intelligence gathering. Brief for

United States 1516, 2324; Reply Brief for United States 23.
51

The Government further insists that courts 'as a practical matter would have
neither the knowledge nor the techniques necessary to determine whether there
was probable cause to believe that surveillance was necessary to protect
national security.' These security problems, the Government contends, involve
'a large number of complex and subtle factors' beyond the competence of courts
to evaluate. Reply Brief for United States 4.

52

As a final reason for exemption from a warrant requirement, the Government

believes that disclosure to a magistrate of all or even a significant portion of the
information involved in domestic security surveillances 'would create serious
potential dangers to the national security and to the lives of informants and
agents. . . . Secrecy is the essential ingredient in intelligence gathering;
requiring prior judicial authorization would create a greater 'danger of leaks . . .,
because in addition to the judge, you have the clerk, the stenographer and some
other officer like a law assistant or bailiff who may be apprised of the nature' of
the surveillance.' Brief for United States 2425.

53

These contentions in behalf of a complete exemption from the warrant

requirement, when urged on behalf of the President and the national security in
its domestic implications, merit the most careful consideration. We certainly do
not reject them lightly, especially at a time of worldwide ferment and when
civil disorders in this country are more prevalent than in the less turbulent
periods of our history. There is, no doubt, pragmatic force to the Government's
position.

54

But we do not think a case has been made for the requested departure from
Fourth Amendment standards. The circumstances described do not justify
complete exemption of domestic security surveillance from prior judicial
scrutiny. Official surveillance, whether its purpose be criminal investigation or
ongoing intelligence gathering, risks infringement of constitutionally protected
privacy of speech. Security surveillances are especially sensitive because of the
inherent vagueness of the domestic security concept, the necessarily broad and
continuing nature of intelligence gathering, and the temptation to utilize such
surveillances to oversee political dissent. We recognize, as we have before, the
constitutional basis of the President's domestic security role, but we think it
must be exercised in a manner compatible with the Fourth Amendment. In this
case we hold that this requires an appropriate prior warrant procedure.
We cannot accept the Government's argument that internal security matters are

55

We cannot accept the Government's argument that internal security matters are
too subtle and complex for judicial evaluation. Courts regularly deal with the
most difficult issues of our society. There is no reason to believe that federal
judges will be insensitive to or uncomprehending of the issues involved in
domestic security cases. Certainly courts can recognize that domestic security
surveillance involves different considerations from the surveillance of 'ordinary
crime.' If the threat is too subtle or complex for our senior law enforcement
officers to convey its significance to a court, one may question whether there is
probable cause for surveillance.

56

Nor do we believe prior judicial approval will fracture the secrecy essential to
official intelligence gathering. The investigation of criminal activity has long
involved imparting sensitive information to judicial officers who have
respected the confidentialities involved. Judges may be counted upon to be
especially conscious of security requirements in national security cases. Title
III of the Omnibus Crime Control and Safe Streets Act already has imposed this
responsibility on the judiciary in connection with such crimes as espionage,
sabotage, and treason, 2516(1)(a) and (c), each of which may involve
domestic as well as foreign security threats. Moreover, a warrant application
involves no public or adversary proceedings: it is an ex parte request before a
magistrate or judge. Whatever security dangers clerical and secretarial
personnel may pose can be minimized by proper administrative measures,
possibly to the point of allowing the Government itself to provide the necessary
clerical assistance.

57

Thus, we conclude that the Government's concerns do not justify departure in

this case from the customary Fourth Amendment requirement of judicial
approval prior to initiation of a search or surveillance. Although some added
burden will be imposed upon the Attorney General, this inconvenience is
justified in a free society to protect constitutional values. Nor do we think the
Government's domestic surveillance powers will be impaired to any significant
degree. A prior warrant establishes presumptive validity of the surveillance and
will minimize the burden of justification in post-surveillance judicial review.
By no means of least importance will be the reassurance of the public generally
that indiscriminate wiretapping and bugging of law-abiding citizens cannot
occur.

IV
58

We emphasize, before concluding this opinion, the scope of our decision. As

stated at the outset, this case involves only the domestic aspects of national
security. We have not addressedAnd express no opinion as to, the issues which
may be involved with respect to activities of foreign powers or their agents.20

Nor does our decision rest on the language of 2511(3) or any other section of
Title III of the Omnibus Crime Control and Safe Streets Act of 1968. That Act
does not attempt to define or delineate the powers of the President to meet
domestic threats to the national security.
59

Moreover, we do not hold that the same type of standards and procedures
prescribed by Title III are necessarily applicable to this case. We recognize that
domestic security surveillance may involve different policy and practical
considerations from the surveillance of 'ordinary crime.' The gathering of
security intelligence is often long range and involves the interrelation of
various sources and types of information. The exact targets of such surveillance
may be more difficult to identify than in surveillance operations against many
types of crime specified in Title III. Often, too, the emphasis of domestic
intelligence gathering is on the prevention of unlawful activity or the
enhancement of the Government's preparedness for some possible future crisis
or emergency. Thus, the focus of domestic surveillance may be less precise
than that directed against more conventional types of crime.

60

Given those potential distinctions between Title III criminal surveillances and
those involving the domestic security, Congress may wish to consider
protective standards for the latter which differ from those already prescribed
for specified crimes in Title III. Different standards may be compatible with the
Fourth Amendment if they are reasonable both in relation to the legitimate need
of Government for intelligence information and the protected rights of our
citizens. For the warrant application may vary according to the governmental
interest to be enforced and the nature of citizen rights deserving protection. As
the Court said in Camara v. Municipal Court, 387 U.S. 523, 534535, 87 S.Ct.
1727, 1734, 18 L.Ed.2d 930 (1967):

61

'In cases in which the Fourth Amendment requires that a warrant to search be
obtained, 'probable cause' is the standard by which a particular decision to
search is tested against the constitutional mandate of reasonableness. . . . In
determining whether a particular inspection is reasonable and thus in
determining whether there is probable cause to issue a warrant for that
inspectionthe need for the inspection must be weighed in terms of these
reasonable goals of code enforcement.'

62

It may be that Congress, for example, would judge 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 authorization could, in sensitive
cases, be made to any member of a specially designated court (e.g., 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 as those in 2518.
63

The above paragraph does not, of course, attempt to guide the congressional
judgment but rather to delineate the present scope of our own opinion. We do
not attempt to detail the precise standards for domestic security 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 hold,
however, that prior judicial approval is required for the type of domestic
security surveillance involved in this case and that such approval may be made
in accordance with such reasonable standards as the Congress may prescribe.

V
64

As the surveillance of Plamondon's conversations was unlawful, because

conducted without prior judicial approval, the courts below correctly held that
Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969),
is controlling and that it requires disclosure to the accused of his own
impermissibly intercepted conversations. As stated in Alderman, 'the trial court
can and should, where appropriate, place a defendant and his counsel under
enforceable orders against unwarranted disclosure of the materials which they
may be entitled to inspect.' 394 U.S., at 185, 89 S.Ct., at 973.21

65

The judgment of the Court of Appeals is hereby affirmed.

66

Affirmed.

67

THE CHIEF JUSTICE concurs in the result.

68

Mr. Justice REHNQUIST took no part in the consideration or decision of this

case.

69

Mr. Justice DOUGLAS, concurring.

70

While I join in the opinion of the Court, I add these words in support of it.

71

This is an important phase in the campaign of the police and intelligence

agencies to obtain exemptions from the Warrant Clause of the Fourth
Amendment. For, due to the clandestine nature of electronic eavesdropping, the

need is acute for placing on the Government the heavy burden to show that
'exigencies of the situation (make its) course imperative.'1 Other abuses, such as
the search incident to arrest, have been partly deterred by the threat of damage
actions against offending officers,2 the risk of adverse publicity, or the
possibility of reform through the political process. These latter safeguards,
however, are ineffective against lawless wiretapping and 'bugging' of which
their victims are totally unaware. Moreover, even the risk of exclusion 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 to support indictments and convictions. If the Warrant Clause were
held inapplicable here, then the federal intelligence machine would literally
enjoy unchecked discretion.
72

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

73

We are told that one national security wiretap lasted for 14 months and
monitored over 900 conversations. Senator Edward Kennedy found recently
that 'warrantless 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 revelations
posed 'the frightening possibility that the conversations of untold thousands of
citizens of this country are being monitored on secret devices which no judge
has authorized and which may remain in operation for months and perhaps
years at a time.'4 Even the most innocent and random caller who uses or
telephones into a tapped line can become a flagged number in the Government's
data bank. See Laird v. Tatum, 1971 Term, No. 71288.

74

Such gross invasions of privacy epitomize the very evil to which the Warrant
Clause was directed. This Court has been the unfortunate witness to the hazards
of police intrusions which did not receive prior sanction by independent
magistrates. For example, in Weeks v. United States, 232 U.S. 383, 34 S.Ct.
341, 58 L.Ed. 652; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d
1081; and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685,
entire homes were ransacked pursuant to warrantless searches. Indeed, in
Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876, the entire
contents of a cabin, totaling more than 800 items (such as '1 Dish Rag')5 were
seized incident to an arrest of its occupant and were taken to San Francisco for
study by FBI agents. In a similar case, Von Cleef v. New Jersey, 395 U.S. 814,

89 S.Ct. 2051, 23 L.Ed.2d 728, police, without a warrant, searched an arrestee's

house for three hours, eventually seizing 'several thousand articles, including
books, magazines, catalogues, mailing lists, private correspondence (both open
and unopened), photographs, drawings, and film.' Id., at 815, 89 S.Ct., at 2052.
In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64
L.Ed. 319, federal agents 'without a shadow of authority' raided the offices of
one of the petitioners (the proprietors of which had earlier been jailed) and
'made a clean sweep of all the books, papers and documents found there.'
Justice Holmes, for the Court, termed this tactic an 'outrage.' Id., at 385, 390,
391, 40 S.Ct., at 182. In Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13
L.Ed.2d 431, state police seized more than 2,000 items of literature including
the writings of Mr. Justice Black, pursuant to a general search warrant issued to
inspect an alleged subversive's home.
75

That 'domestic security' is said to be involved here does not draw this case
outside the mainstream of Fourth Amendment law. Rather, the recurring desire
of reigning officials to employ dragnet techniques to intimidate their critics lies
at the core of that prohibition. For it was such excesses as the use of general
warrants and the writs of assistance that led to the ratification of the Fourth
Amendment. In Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng.Rep. 807,
decided in 1765, one finds a striking parallel to the executive warrants utilized
here. The Secretary of State had issued general executive warrants to his
messengers authorizing them to roam about and to seize libelous material and
libellants of the sovereign. Entick, a critic of the Crown, was the victim of one
such general search during which his seditious publications were impounded.
He brought a successful damage action for trespass against the messengers.
The verdict was sustained on appeal. Lord Camden wrote that if such sweeping
tactics were validated, then 'the secret cabinets and bureaus of every subject in
this kingdom will be thrown open to the search and inspection of a messenger,
whenever the secretary of state shall think fit to charge, or even to suspect, a
person to be the author, printer, or publisher of a seditious libel.' Id., at 1063. In
a related and similar proceeding, Huckle v. Money, 2 Wils. K.B. 206, 207, 95
Eng.Rep. 768, 769 (1763), the same judge who presided over Entick's appeal
held for another victim of the same despotic practice, saying '(t)o enter a man's
house by virtue of a nameless warrant, in order to procure evidence, is worse
than the Spanish Inquisition . . .' See also Wilkes v. Wood, 19 How.St.Tr. 1153,
98 Eng.Rep. 489 (1763). As early as Boyd v. United States, 116 U.S. 616, 626,
6 S.Ct. 524, 530, 29 L.Ed. 746, and as recently as Stanford v. Texas, supra, 379
U.S. at 485486, 85 S.Ct. at 511 512; Berger v. New York, 388 U.S. 41, 49
50, 87 S.Ct. 1873, 1879, 18 L.Ed.2d 1040 and Coolidge v. New Hampshire,
supra, 403 U.S., at 455 n. 9, 91 S.Ct., at 2032, the tyrannical invasions
described and assailed in Entick, Huckle, and Wilkes, practices which also were

endured by the colonists,6 have been recognized as the primary abuses which
ensured the Warrant Clause a prominent place in our Bill of Rights. See J.
Landynski, Search and Seizure and the Supreme Court 2848 (1966). N.
Lasson, The History and Development of the Fourth Amendment to the United
States Constitution 4378 (1937); Note, Warrantless Searches In Light of
Chimel: A Return To The Original Understanding, 11 Ariz.L.Rev. 457, 460
476 (1969).
76

As illustrated by a flood of cases before us this Term, e.g., Laird v. Tatum, No.
71288; Gelbard v. United States, No. 71110; United States v. Egan, No.
71263; United States v. Caldwell, No. 7057; United States v. Gravel, No.
711026; Kleindienst v. Mandel, No. 7116; we are currently in the throes of
another national seizure of paranoia, resembling the hysteria which surrounded
the Alien and Sedition Acts, the Palmer Raids, and the McCarthy era. Those
who register dissent or who petition their governments for redress are subjected
to scrutiny by grand juries,7 by the FBI, 8 or even by the military.9 Their
associates are interrogated. Their homes are bugged and their telephones are
wiretapped. They are befriended by secret government informers.10 Their
patriotism and loyalty are questioned.11 Senator Sam Ervin, who has chaired
hearings on military surveillance of civilian dissidents, warns that 'it is not an
exaggeration to talk in terms of hundreds of thousands of . . . dossiers.'12

77

Senator Kennedy, as mentioned supra, found 'the frightening possibility that the
conversations of untold thousands are being monitored on secret devices.' More
than our privacy is implicated. Also at stake is the reach of the Government's
power to intimidate its critics.

78

When the Executive attempts to excuse these tactics as essential to its defense
against internal subversion, we are obliged to remind it, without apology of this
Court's long commitment to the preservation of the Bill of Rights from the
corrosive environment of precisely such expedients.13 As Justice Brandeis said,
concurring in Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 648, 71
L.Ed. 1095 'Those who won our independence by revolution were not cowards.
They did not fear political change. They did not exalt order at the cost of
liberty.' Chief Justice Warren put it this way in United States v. Robel, 389 U.S.
258, 264, 88 S.Ct. 419, 423, 19 L.Ed.2d 508; '(T)his concept of 'national
defense' cannot be deemed an end in itself, justifying any . . . power designed to
promote such a goal. Implicit in the term 'national defense' is the notion of
defending those values and ideas which set this Nation apart. . . . It would
indeed be ironic if, in the name of national defense, we would sanction the
subversion of . . . those liberties . . . which (make) the defense of the Nation
worthwhile.'

79

The Warrant Clause has stood as a barrier against intrusions by officialdom into
the privacies of life. But if that barrier were lowered now to permit suspected
subversives' most intimate conversations to be pillaged then why could not their
abodes or mail be secretly searched by the same authority? To defeat so
terrifying a claim of inherent power we need only stand by the enduring values
served by the Fourth Amendment. As we stated last Term in Coolidge v. New
Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564: 'In times
of unrest, whether caused by crime or racial conflict or fear of internal
subversion, this basic law and the values that it represents may appear
unrealistic or 'extravagant' to some. But the values were those of the authors of
our fundamental constitutional concepts. In times not altogether unlike our own
they won . . . a right of personal security against arbitrary intrusions . . . If times
have changed, reducing everyman's scope to do as he pleases in an urban and
industrial world, the changes have made the values served by the Fourth
Amendment more, not less, important.' We have as much or more to fear from
the erosion of our sense of privacy and independence by the omnipresent
electronic ear of the Government as we do from the likelihood that fomenters
of domestic upheaval will modify our form of governing.14

Page 334
APPENDIX TO OPINION OF DOUGLAS, J., CONCURRING

80

FEDERAL WIRETAPPING AND BUGGING 19691970

Court Ordered
Devices

Year
1969
1970

Executive Ordered
Devices

Days in
Number
30
180

Use
462
2,363

Days in Use
Minimum
Number

Maximum
(Rounded)

94
113

8,100
8,100

Ratio of Days Used

Executive Ordered:

20
22

Average Days in Use

Per Device

Court Ordered
Year

Minimum

Maximum

Court
Ordered
Devices

1969
1970

17.5*
3.4

45.0*
9.6

15.4
13.1

81

(Rou

Executive Ord
Devices
Minimum

Maximum

86.2
71.7

221.3
200.0

Mr. Justice WHITE, concurring in the judgment.

This case arises out of a two-count indictment charging conspiracy to injure and

82

This case arises out of a two-count indictment charging conspiracy to injure and
injury to Government property. Count I charged Robert Plamondon and two
codefendants with conspiring with a fourth person to injure Government
property with dynamite. Count II charged Plamondon alone with dynamiting
and injuring Government property in Ann Arbor, Michigan. The defendants
moved to compel the United States to disclose, among other things, any logs
and records of electronic surveillance directed at them, at unindicted
coconspirators, or at any premises of the defendants or coconspirators. They
also moved for a hearing to determine whether any electronic surveillance
disclosed had tainted the evidence on which the grand jury indictment was
based and which the Government intended to use at trial. They asked for
dismissal of the indictment if such taint were determined to exist. Opposing the
motion, the United States submitted an affidavit of the Attorney General of the
United States disclosing that '(t)he defendant Plamondon has participated in
conversations which were overheard by Government agents who were
monitoring wiretaps which were being employed to gather intelligence
information deemed necessary to protect the nation from attempts of domestic
organizations to attack and subvert the existing structure of the Government,'
the wiretaps having been expressly approved by the Attorney General. The
records of the intercepted conversations and copies of the memorandum
reflecting the Attorney General's approval were submitted under seal and solely
for the Court's in camera inspection.1

83

As characterized by the District Court, the position of the United States was
that the electronic monitoring of Plamondon's conversations without judicial
warrant was a lawful exercise of the power of the President to safeguard the
national security. The District Court granted the motion of defendants, holding
that the President had no constitutional power to employ electronic surveillance
without warrant to gather information about domestic organizations. Absent
probable cause and judicial authorization, the challenged wiretap infringed
Plamondon's Fourth Amendment rights. The court ordered the Government to
disclose to defendants the records of the monitored conversations and directed
that a hearing be held to determine the existence of taint either in the indictment
or in the evidence to be introduced at trial.

84

The Government's petition for mandamus to require the District Court to vacate
its order was denied by the Court of Appeals. 444 F.2d 651 (CA6 1971). 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 District Court that because the wiretaps involved were
therefore constitutionally infirm, the United States must turn over to defendants
the records of overheard conversations for the purpose of determining whether
the Government's evidence was tainted.

85

I would affirm the Court of Appeals but on the statutory ground urged by
defendant-respondents (Brief 115) without reaching or intimating any views
withrespect to the constitutional issue decided by both the District Court and
the Court of Appeals.

86

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
25102520, forbids, under pain of criminal penalties and civil actions for
damages, any wiretapping or eavesdropping not undertaken in accordance with
specified procedures for obtaining judicial warrants authorizing the
surveillance. Section 2511(1) establishes a general prohibition against
electronic eavesdropping '(e)xcept as otherwise specifically provided' in the
statute. Later sections provide detailed procedures for judicial authorization of
official interceptions of oral communications; when these procedures are
followed the interception is not subject to the prohibitions of 2511(1). Section
2511(2), however, specifies other situations in which the general prohibitions of
2511(1) do not apply. In addition, 2511(3) provides that:

87

'Nothing contained in this chapter or in section 605 of the Communications Act

of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of
the President to take such measures as he deems necessary to protect the Nation
against actual or potential attack or other hostile acts of a foreign power, to
obtain foreign intelligence information deemed essential to the security of the
United States, or to protect national security information against foreign
intelligence activities. Nor shall anything contained in this chapter be deemed
to limit the constitutional power of the President to take such measures as he
deems necessary to protect the United States against the overthrow of the
Government by force or other unlawful means, or against any other clear and
present danger to the structure or existence of the Government. The contents of
any wire or oral communication intercepted by authority of the President in the
exercise of the foregoing powers may be received in evidence in any trial
hearing, or other proceeding only where such interception was reasonable, and
shall not be otherwise used or disclosed except as is necessary to implement
that power.'

88

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

89

The interception here was without judicial warrant, it was not covered by the
provisions of 2511(2) and it is too clear for argument that it is illegal under
2511(1) unless it is saved by 2511(3). The majority asserts that 2511(3) is a
'disclaimer' but not an 'exception.' But however it is labeled, it is apparent from
the face of the section and its legislative history that if this interception is one
of those described in 2511(3), it is not reached by the statutory ban on

unwarranted electronic eavesdropping.2

90

The defendants in the District Court moved for the production of the logs of
any electronic surveillance to which they might have been subjected. The
Government responded that conversations of Plamondon had been intercepted
but took the position that turnover of surveillance records was not necessary
because the interception complied with the law. Clearly, for the Government to
prevail it was necessary to demonstrate, first, that the interception involved was
not subject to the statutory requirement of judicial approval for wiretapping
because the surveillance was within the scope of 2511(3); and, secondly, if
the Act did not forbid the warrantless wiretap, that the surveillance was
consistent with the Fourth Amendment.

91

The United States has made no claim in this case that the statute may not
constitutionally be applied to the surveillance at issue here.3 Nor has it denied
that to comply with the Act the surveillance must either be supported by a
warrant or fall within the bounds of the exceptions provided by 2511(3).
Nevertheless, as I read the opinions of the District Court and the Court of
Appeals, neither court stopped to inquire whether the challenged interception
was illegal under the statute but proceeded directly to the constitutional issue
without adverting to the time-honored rule that courts should abjure
constitutional issues except where necessary to decision of the case before
them. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346348, 56
S.Ct. 466, 482483, 80 L.Ed. 688 (1936) (concurring opinion). Because I
conclude that on the record before us the surveillance undertaken by the
Government in this case was illegal under the statute itself, I find it
unnecessary, and therefore improper, to consider or decide the constitutional
questions which the courts below improvidently reached.

92

The threshold statutory question is simply put: Was the electronic surveillance
undertaken by the Government in this case a measure deemed necessary by the
President to implement either the first or second branch of the exception carved
out by 2511(3) to the general requirement of a warrant?

93

The answer, it seems to me, must turn on the affidavit of the Attorney General
offered by the United States in opposition to defendants' motion to disclose
surveillance records. It is apparent that there is nothing whatsoever in this
affidavit suggesting that the surveillance was undertaken within the first branch
of the 2511(3) exception, that is, to protect against foreign attack, to gather
foreign intelligence or to protect national security information. The sole
assertion was that the monitoring at issue was employed to gather intelligence
information 'deemed necessary to protect the nation from attempts of domestic

organizations to attack and subvert the existing structure of the Government.'

App. 20.
94

Neither can I conclude from this characterization that the wiretap employed
here fell within the exception recognized by the second sentence of 2511(3);
for it utterly fails to assume responsibility for the judgment that Congress
demanded: that the surveillance was necessary to prevent overthrow by force or
other unlawful means or that there was any other clear and present danger to
the structure or existence of the Government. The affidavit speaks only of
attempts to attack or subvert; it makes no reference to force or unlawfulness; it
articulates no conclusion that the attempts involved any clear and present
danger to the existence of rstructure of the Government.

95

The shortcomings of the affidavit when measured against 2511(3) are patent.
Indeed, the United States in oral argument conceded no less. The specific
inquiry put to Government counsel was: 'Do you think the affidavit, standing
alone, satisfies the Safe Streets Act?' The Assistant Attorney General answered
'No, sir. We do not rely upon the affidavit itself . . ..' Tr. of Oral Arg. 15.4

96

Government counsel, however, seek to save their case by reference to the in

camera exhibit submitted to the District Court to supplement that Attorney
General's affidavit.5 It is said that the exhibit includes the request for wiretap
approval submitted to the Attorney General, that the request asserted the need
to avert a clear and present danger to the structure and existence of the
Government, and that the Attorney General endorsed his approval on the
request.6 But I am unconvinced that the mere endorsement of the Attorney
General on the request for approval submitted to him must be taken as the
Attorney General's own opinion that the wiretap was necessary to avert a clear
and present danger to the existence or structure of the Government when, in an
affidavit later filed in court specifically characterizing the purposes of the
interception and at least impliedly the grounds for his prior approval, the
Attorney General said only that the tap was undertaken to secure intelligence
thought necessary to protect against attempts to attack and subvert the structure
of Government. If the Attorney General's approval of the interception is to be
given a judicially cognizable meaning different from the meaning he seems to
have ascribed to it in his affidavit filed in court, there obviously must be further
proceedings in the District Court.

97

Moreover, I am reluctant to proceed in the first instance to examine the in

camera material and either sustain or reject the surveillance as a necessary
measure to avert the dangers referred to in 2511(3). What Congress excepted
from the warrant requirement was a surveillance which the President would

assume responsibility for deeming an essential measure to protect against clear

and present danger. No judge can satisfy this congressional requirement.
98

Without the necessary threshold determination, the interception is, in my

opinion, contrary to the terms of the statute and subject therefore to the
prohibition contained in 2515 against the use of the fruits of the warrantless
electronic surveillance as evidence at any trial.7

99

There remain two additional interrelated reasons for not reaching the
constitutional issue. First, even if it were determined that the Attorney General
purported to authorize an electronic surveillance for purposes exempt from the
general provisions of the Act, there would remain the issue whether his
discretion was properly authorized. The United States concedes that the act of
the Attorney General authorizing a warrantless wiretap is subject to judicial
review to some extent, Brief for United States 2123, and it seems
improvident to proceed to constitutional questions until it is determined that the
Act itself does not bar the interception here in question.

100 Second, and again on the assumption that the surveillance here involved fell
within the exception provided by 2511(3), no constitutional issue need be
reached in this case if the fruits of the wiretap were inadmissible on statutory
grounds in the criminal proceedings pending against respondent Plamondon.
Section 2511(3) itself states that '(t)he contents of any wire or oral
communication intercepted by authority of the President in the exercise of the
foregoing powers may be received in evidence in any trial hearing, or other
proceeding only where such interception was reasonable, and shall not be
otherwise used or disclosed except as is necessary to implement that power.'
(Emphasis added.) There has been no determination by the District Court that it
would be reasonable to use the fruits of the wiretap against Plamondon or that it
would be necessary to do so to implement the purposes for which the tap was
authorized.
101 My own conclusion, again, is that, as long as nonconstitutional, statutory
grounds for excluding the evidence or its fruits have not been disposed of, it is
improvident to reach the constitutional issue.
102 I would thus affirm the judgment of the Court of Appeals unless the Court is
prepared to reconsider the necessity for an adversary, rather than an in camera,
hearing with respect to taint. If in camera proceedings are sufficient and no taint
is discerned by the judge, this case is over, whatever the legality of the tap.

See n. 10, infra.

The Attorney General's affidavit reads as follows:

'JOHN N. MITCHELL being duly sworn deposes and says:
'1. I am the Attorney General of the United States.
'2. This affidavit is submitted in connection with the Government's opposition
to the disclosure to the defendant Plamondon of information concerning the
overhearing of his conversations which occurred during the course of electronic
surveillances which the Government contends were legal.
'3. The defendant Plamondon has participated in conversations which were
overheard by Government agents who were monitoring wiretaps which were
being employed to gather intelligence information deemed necessary to protect
the nation from attempts of domestic organizations to attack and subvert the
existing structure of the Government. The records of the Department of Justice
reflect the installation of these wiretaps had been expressly approved by the
Attorney General.
'4. Submitted with this affidavit is a sealed exhibit containing the records of the
intercepted conversations, a description of the premises that were the subjects
of surveillances, and copies of the memoranda reflecting the Attorney General's
express approval of the installation of the surveillances.
'5. I certify that it would prejudice the national interest to disclose the particular
facts concerning these surveillances other than to the court in camera.
Accordingly, the sealed exhibit referred to herein is being submitted solely for
the court's in camera inspection and a copy of the sealed exhibit is not being
furnished to the defendants. I would request the court, at the conclusion of its
hearing on this matter, to place the sealed exhibit in a sealed envelope and
return it to the Department of Justice where it will be retained under seal so that
it may be submitted to any appellate court that may review this matter.'

Jurisdiction was challenged before the Court of Appeals on the ground that the
District Court's order was interlocutory and not appealable under 28 U.S.C.
1291. On this issue, the court correctly held that it did have jurisdiction, relying
upon the All Writs Act, 28 U.S.C. 1651, and cases cited in its opinion, 444
F.2d, at 655656. No attack was made in this Court as to the appropriateness
of the writ of mandamus procedure.

These exceptions relate to certain activities of communication common carriers

and the Federal Communications Commission, and to specified stituations

where a party to the communication has consented to the interception.

5

Title 18 U.S.C. 2518, subsection (1) reads as follows:

2518. Procedure for interception of wire or oral communications
'(1) Each application for an order authorizing or approving the interception of a
wire or oral communication shall be made in writing upon oath or affirmation to
a judge of competent jurisdiction
and shall state the applicant's authority to make such application. Each
application shall include the following information:
'(a) the identity of the investigative or law enforcement officer making the
application, and the officer authorizing the application;
'(b) a full and complete statement of the facts and circumstances relied upon by
the applicant, to justify his belief that an order should be issued, including (i)
details as to the particular offense that has been, is being, or is about to be
committed, (ii) a particular description of the nature and location of the
facilities from which or the place where the communication is to be intercepted,
(iii) a particular description of the type of communications sought to be
intercepted, (iv) the identity of the person, if known, committing the offense
and whose communications are to be intercepted;
'(c) a full and complete statement as to whether or not other investigative
procedures have been tried and failed or why they reasonably appear to be
unlikely to succeed if tried or to be too dangerous;
'(d) a statement of the period of time for which the interception is required to be
maintained. If the nature of the investigation is such that the authorization for
interception should not automatically terminate when the described type of
communication has been first obtained, a particular description of facts
establishing probable cause to believe that additional communications of the
same type will occur thereafter;
'(e) a full and complete statement of the facts concerning all previous
applications known to the individual authorizing and making the application,
made to any judge for authorization to intercept, or for approval of
interceptions of, wire or oral communications involving any of the same
persons, facilities or places specified in the application, and the action taken by
the judge on each such application; and
'(f) where the application is for the extension of an order, a statement setting

forth the results thus far obtained from the interception, or a reasonable
explanation of the failure to obtain such results.'
6

The final sentence of 2511(3) states that the contents of an interception 'by
authority of the President in the exercise of the foregoing powers may be
received in evidence . . . only where such interception was reasonable . . .' This
sentence seems intended to assure that when the President conducts lawful
surveillancepursuant to whatever power he may possessthe evidence is
admissible.

114 Cong.Rec. 14751. Senator McClellan was the sponsor of the bill. The
above exchanged constitutes the only time that 2511(3) was expressly debated
on the Senate or House floor. The Report of the Senate Judiciary Committee is
not so explicit as the exchange on the floor, but it appears to recognize that
under 2511(3) the national security power of the Presidentwhatever it may
be'is not to be deemed disturbed.' S.Rep.No.1097, 90th Cong., 2d Sess., 94
U.S.Code Cong. & Admin.News, p. 2183 (1968). See also The 'National
Security Wiretap': Presidential Prerogative or Judicial Responsibility, where the
author concludes that in 2511(3) 'Congress took what amounted to a position
of neutral noninterference on the question of the constitutionality of warrantless
national security wiretaps authorized by the President.' 45 S.Cal.L.Rev. 888,
889 (1972).

Section 2511(3) refers to 'the constitutional power of the President' in two types
of situations: (i) where necessary to protect against attack, other hostile acts or
intelligence activities of a 'foreign power'; or (ii) where necessary to protect
against the overthrow of the Government or other clear and present danger to
the structure or existence of the Government. Although both of the specified
situations are sometimes referred to as 'national security' threats, the term
'national security' is used only in the first sentence of 2511(3) with respect to
the activities of foreign powers. This case involves only the second sentence of
2511(3), with the threat emanatingaccording to the Attorney General's
affidavitfrom 'domestic organizations.' Although we attempt no precise
definition, we use the term 'domestic organization' in this opinion to mean a
group or organization (whether formally or informally constituted) composed of
citizens of the United States and which has no significant connection with a
foreign power, its agents or agencies. No doubt there are cases where it will be
difficult to distinguish between 'domestic' and 'foreign' unlawful activities
directed against the Government of the United States where there is
collaboration in varying degrees between domestic groups or organizations and
agents or agencies of foreign powers. But this is not such a case.

Enactment of Title III reflects congressional recognition of the importance of

such surveillance in combatting various types of crime. Frank S. Hogan,

District Attorney for New York County for over 25 years, described telephonic
interception, pursuant to court order, as 'the single most valuable weapon in law
enforcement's fight against organized crime.' 117 Cong.Rec. 14051. The 'Crime
Commission' appointed by President Johnson noted that '(t)he great majority of
law enforcement officials believe that the evidence necessary to bring criminal
sanctions to bear consistently on the higher echelons of organized crime will
not be obtained without the aid of electronic surveillance techniques. They
maintain these techniques are indispensable to develop adequate strategic
intelligence concerning organized crime, to set up specific investigations, to
develop witnesses to corroborate their testimony, and to serve as substitutes for
themeach a necessary step in the evidencegathering process in organized
crime investigations and prosecutions.' Report by the President's Commission
on Law Enforcement and Administration of Justice, The Challenge of Crime in
a Free Society 201 (1967).
10

In that month Attorney General Tom Clark advised President Truman of the
necessity of using wiretaps 'in cases vitally affecting the domestic security.' In
May 1940 President Roosevelt had authorized Attorney General Jackson to
utilize wiretapping in matters 'involving the defense of the nation,' but it is
questionable whether this language was meant to apply to solely domestic
subversion. The nature and extent of wiretapping apparently varied under
different administrations and Attorneys General, but, except for the sharp
curtailment under Attorney General Ramsey Clark in the latter years of the
Johnson administration, electronic surveillance has been used both against
organized crime and in domestic security cases at least since the 1946
memorandum from Clark to Truman. Brief for United States 16 18; Brief for
Respondents 5156; 117 Cong.Rec. 14056.

11

Brownell, The Public Security and Wire Tapping, 39 Cornell L.Q. 195, 202
(1954). See also Rogers, The Case for Wire Tapping, 63 Yale L.J. 792 (1954).

12

The Government asserts that there were 1,562 bombing incidents in the United
States from January 1, 1971, to July 1, 1971, most of which involved
Government related facilities. Respondents dispute these statistics as
incorporating many frivolous incidents as well as bombings against
nongovernmental facilities. The precise level of this activity, however, is not
relevant to the disposition of this case. Brief for United States 18; Brief for
Respondents 2629; Reply Brief for United States 13.

13

Professor Alan Westin has written on the likely course of future conflict
between the value of privacy and the 'new technology' of law enforcement.
Much of the book details techniques of physical and electronic surveillance and

such possible threats to personal privacy as psychological and personality

testing and electronic information storage and retrieval. Not all of the
contemporary threats to privacy emanated directly from the pressures of crime
control. Privacy and Freedom (1967).
14

Though the total number of intercepts authorized by state and federal judges
pursuant to Tit. III of the 1968 Omnibus Crime Control and Safe Streets Act
was 597 in 1970, each surveillance may involve interception of hundreds of
different conversations. The average intercept in 1970 involved 44 people and
655 conversations, of which 295 or 45% were incriminating. 117 Cong.Rec.
14052.

15

114 Cong.Rec. 14750. The subsequent assurances, quoted in part I of the

opinion, that 2511(3) implied no statutory grant, contraction, or definition of
presidential power eased the Senator's misgivings.

16

This view has not been accepted. In Chimel v. California, 395 U.S. 752, 89
S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Court considered the Government's
contention that the search be judged on a general 'reasonableness' standard
without reference to the warrant clause. The Court concluded that argument
was 'founded on little more than a subjective view regarding the acceptability
of certain sorts of police conduct, and not on considerations relevant to Fourth
Amendment interests. Under such an unconfined analysis, Fourth Amendment
protection in this area would approach the evaporation point.' Id., at 764765,
89 S.Ct., at 2041.

17

N. Lasson, The History and Development of the Fourth Amendment to the

United States Constitution 79105 (1937).

18

We use the word 'judicial' to connote the traditional Fourth Amendment

requirement of a neutral and detached magistrate.

19

The Government argues that domestic security wiretaps should be upheld by

courts in post-surveillance review '(u)nless it appears that the Attorney
General's determination that the proposed surveillance relates to a national
security matter is arbitrary and capricious, i.e., that it constitutes a clear abuse
of the broad discretion that the Attorney General has to obtain all information
that will be helpful to the President in protecting the Government . . .' against
the various unlawful acts in 2511(3). Brief for United States 22.

20

See n. 8, supra. For the view that warrantless surveillance, though

impermissible in domestic security cases, may be constitutional where foreign
powers are involved, see United States v. Smith, 321 F.Supp. 424, 425426
(CDCal.1971); and American Bar Association Project on Standards for

Criminal Justice, Electronic Surveillance 120, 121 (Approved Draft 1971 and
Feb. 1971 Supp. 11). See also United States v. Clay, 430 F.2d 165 (CA5 1970).
21

We think it unnecessary at this time and on the facts of this case to consider the
arguments advanced by the Government for a re-examination of the basis and
scope of the Court's decision in Alderman.

Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29
L.Ed.2d 564; McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193,
93 L.Ed. 153; Chimel v. California, 395 U.S. 752, 756, 89 S.Ct. 2034, 2036, 23
L.Ed.2d 685; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96
L.Ed. 59.

See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619.

Letter from Senator Edward Kennedy to Members of the Subcommittee on

Administrative Procedure and Practice of the Senate Judiciary Committee, Dec.
17, 1971, p. 2. Senator Kennedy included in his letter a chart comparing courtordered and department-ordered wiretapping and bugging by federal agencies.
This chart is reproduced in the Appendix to this opinion. For a statistical
breakdown by duration, location, and implementing agency of the 1,042
wiretap orders issued in 1971 by state and federal judges, see Administrative
Office of the United States Courts, Report on Applications for Orders
Authorizing or Approving the Interception of Wire or Oral Communications for
1971; The Washington Post, May 14, 1972, p. A30, col. 1 (final ed.).

Kennedy, supra, n. 3, at 2. See also H. Schwartz, A Report on the Costs and

Benefits of Electronic Surveillance (American Civil Liberties Union 1971);
Schwartz, The Legitimation of Electronic Eavesdropping: The Politics of 'Law
and Order,' 67 Mich.L.Rev. 455 (1969).

For a complete itemization of the objects seized, see the Appendix to Kremen
v. United States, 353 U.S. 346, 349, 77 S.Ct. 828, 830, 1 L.Ed.2d 876.

'On this side of the Atlantic, the argument concerning the validity of general
search warrants centered around the writs of assistance which were used by
customs officers for the detection of smuggled goods.' N. Lasson, The History
and Development of the Fourth Amendment to the United States Constitution
51 (1937). In February 1761, all writs expired six months after the death of
George II and Boston merchants petitioned the Superior Court in opposition to
the granting of any new writs. The merchants were represented by James Otis,
Jr., who later became a leader in the movement for independence.

'Otis completely electrified the large audience in the court room with his
denunciation of England's whole policy toward the Colonies and with his
argument against general warrants. John Adams, then a young man less than
twenty-six years of age and not yet admitted to the bar, was a spectator, and
many years later described the scene in these oft-quoted words: 'I do say in the
most solemn manner, that Mr. Otis's oration against the Writs of Assistance
breathed into this nation the breath of life.' He 'was a flame of fire! Every man
of a crowded audience appeared to me to go away, as I did, ready to take arms
against Writs of Assistance. Then and there was the first scene of opposition to
the arbitrary claims of Great Britain. Then and there the child Independence
was born. In 15 years, namely in 1776, he grew to manhood, and declared
himself free." Id., at 5859.
7

See Donner & Cerruti, The Grand Jury Network: How the Nixon
Administration Has Secretly Perverted A Traditional Safeguard of Individual
Rights, 214 The Nation 5 (1972). See also United States v. Caldwell, O.T.1971,
No. 7057; United States v. Gravel, O.T.1971, No. 711026; Gelbard v.
United States and United States v. Egan, O.T.1971, Nos. 71110 and 71
263. And see N.Y. Times, July 15, 1971, p. 6, col. 1 (grand jury investigation
of N.Y. Times staff which published the Pentagon Papers).

E.g., N.Y. Times, April 12, 1970, p. 1, col. 2 ('U.S. To Tighten Surveillance of
Radicals'); N.Y. Times, Dec. 14, 1969, p. 1, col. 1 ('F.B.I.'s Informants and
Bugs Collect Data On Black Panthers'); the Washington Post, May 12, 1972, p.
D21, col. 5 ('When the FBI Calls, Everybody Talks'); the Washington Post,
May 16, 1972, p. B15, col. 5 ('Black Activists Are FBI Targets'); the
Washington Post, May 17, 1972, p. B13, col. 5 ('Bedroom Peeking Sharpens
FBI Files'). And, concerning an FBI investigation of Daniel Schorr, a television
correspondent critical of the Government, see N.Y. Times, Nov. 11, 1971, p.
95, col. 4; and N.Y. Times, Nov. 12, 1971, p. 13, col. 1. For the wiretapping
and bugging of Dr. Martin Luther King by the FBI, See V. Navasky, Kennedy
Justice 135155 (1971). For the wiretapping of Mrs. Eleanor Roosevelt and
John L. Lewis by the FBI see Theoharis & Meyer, The 'National Security'
Justification For Electronic Eavesdropping: An Elusive Exception, 14 Wayne
L.Rev. 749, 760761 (1968).

See Laird v. Tatum, O.T.1971, No. 71288; See also Federal Data Banks,
Computers and the Bill of Rights, Hearings before the Subcommittee on
Constitutional Rights of the Senate Committee on the Judiciary, 92d Cong., 1st
Sess. (1971); N.Y. Times, Feb. 29, 1972, p. 1, col. 3.

10

'Informers have been used for national security reasons throughout the
twentieth century. They were deployed to combat what was perceived to be an

internal threat from radicals during the early 1920's. When fears began to focus
on Communism, groups thought to have some connection with the Communist
Party were heavily infiltrated. Infiltration of the Party itself was so intense that
one former FBI agent estimated a ratio of one informant for every 5.7 members
in 1962. More recently, attention has shifted to militant antiwar and civil rights
groups. In part because of support for such groups among university students
throughout the country, informers seem to have become ubiquitous on campus.
Some insight into the scope of the current use of informers was provided by the
Media Papers, FBI documents stolen in early 1971 from a Bureau office in
Media, Pennsylvania. The papers disclose FBI attempts to infiltrate a
conference of war resisters at Haverford College in August 1969, and a
convention of the National Association of Black Students in June 1970. They
also reveal FBI endeavors 'to recruit informers, ranging from bill collectors to
apartment janitors, in an effort to develop constant surveillance in black
communities and New Left organizations' (N.Y. Times, April 8, 1971, p. 22,
col. 1). In Philadelphia's black community, for instance, a whole range of
buildings 'including offices of the Congress of Racial Equality, the Southern
Christian Leadership Conference (and) the Black Coalition' (ibid.) was singled
out for surveillance by building employees and other similar informers working
for the FBI.' Note, Developments In The LawThe National Security Interest
and Civil Liberties, 85 Harv.L.Rev. 1130, 12721273 (1972). For accounts of
the impersonation of journalists by police, FBI agents and soldiers in order to
gain the confidences of dissidents, see Press Freedoms Under Pressure, Report
of the Twentieth Century Fund Task Force on the Government and the Press 29
34, 8697 (1972). For the revelation of Army infiltration of political
organizations and spying on Senators, Governors and Congressmen, see
Federal Data Banks, Computers and the Bill of Rights, Hearings before the
Subcommittee on Constitutional Rights of the Senate Committee on the
Judiciary, 92d Cong., 1st Sess. (1971) (discussed in my dissent from the denial
of certiorari in Williamson v. United States, 405 U.S. 1026, 92 S.Ct. 1323, 31
L.Ed.2d 487). Among the Media Papers was the suggestion by the FBI that
investigation of dissidents be stepped up in order to "enhance the paranoia
endemic in these circles and (to) further serve to get the point across there is an
FBI agent behind every mailbox." N.Y. Times, March 25, 1971, p. 33, col. 1.
11

E.g., N.Y. Times, Feb. 8, 1972, p. 1, col. 8 (Senate peace advocates said, by
presidential adviser, to be aiding and abetting the enemy).

12

Amicus curiae brief submitted by Senator Sam Ervin, in Laird v. Tatum, No. 71
288, O.T.1971, p. 8.

13

E.g., New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29
L.Ed.2d 822; Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d

491; United States v. Robel, 389 U.S. 258, 264, 88 S.Ct. 419, 423, 19 L.Ed.2d
508; Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d
992; Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377;
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96
L.Ed. 1153; Duncan v. kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688;
White v. Steer, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688; De Jonge v. Oregon,
299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278; Ex parte Milligan, 4 Wall.
2, 18 L.Ed. 281; Mitchell v. Harmony, 13 How. 115, 14 L.Ed. 75. Note, The
'National Security Wiretap': Presidential Prerogative or Judicial Responsibility,
45 S.Cal.L.Rev. 888, 907912 (1972).
14

I continue in my belief that it would be extremely difficult to write a search

warrant specifically naming the particular conversations to be seized and
therefore any such attempt would amount to a general warrant, the very abuse
condemned by the Fourth Amendment. As I said, dissenting in Osborn v.
United States, 385 U.S. 323, 353, 87 S.Ct. 439, 446, 17 L.Ed.2d 394: 'Such
devices lay down a dragnet which indiscriminately sweeps in all conversations
within its scope, without regard to the nature of the conversations, or the
participants. A warrant authorizing such devices is no different from the
general warrants the Fourth Amendment was intended to prohibit.'

Ratios for 1969 are less meaningful than those for 1970, since court-ordered
surveillance program was in its initial stage in 1969.
Source:
(1) Letter from Assistant Attorney General Robert Mardian to Senator Edward
M. Kennedy, March 1, 1971. Source figures withheld at request of Justice
Department.
(2) Reports of Administrative Office of U.S. Courts for 1969 and 1970.

The Attorney General's affidavit concluded:

'I certify that it would prejudice the national interest to disclose the particular
facts concerning these surveillances other than to the court in camera.
Accordingly, the sealed exhibit referred to herein is being submitted solely for
the court's in camera inspection and a copy of the sealed exhibit is not being
furnished to the defendants. I would request the court, at the conclusion of its
hearing on this matter, to place the sealed exhibit in a sealed envelope and
return it to the Department of Justice where it will be retained under seal so that
it may be submitted to any appellate court that may review this matter.' App. 20
21.

I cannot agree with the majority's analysis of the import of 2511(3). Surely,
Congress meant at least that if a court determined that in the specified
circumstances the President could constitutionally intercept communications
without a warrant, the general ban of 2511(1) would not apply. But the
limitation on the applicability of 2511(1) was not open-ended; it was confined
to those situations that 2511(3) specifically described. Thus, even assuming
the constitutionality of a warrantless surveillance authorized by the President to
uncover private or official graft forbidden by federal statute, the interception
would be illegal under 2511(1) because it is not the type of presidential action
saved by the Act by the provision of 2511(3). As stated in the text and n. 3,
infra, the United States does not claim that Congress is powerless to require
warrants for surveillances that the President otherwise would not be barred by
the Fourth Amendment from undertaking without a warrant.

See Tr. of Oral Arg. 1314:

'Q. . . . I take it from your answer that Congress could forbid the President from
doing what you suggest he has the power to do in this case?
'Mr. Mardian (Assistant Attorney General): That issue is not before this Court

'Q. Well, I wouldmy next question will suggest that it is. Would you say,
though, that Congress could forbid the President?
'Mr. Mardian: I think under the rule announced by this court in Colony Catering
that within certain limits the Congress could severely restrict the power of the
President in this area.
'Q. Well, let's assume Congress says, then, that the Attorney General, or the
President may authorize the Attorney General in specific situations to carry out
electronic surveillance if the Attorney General certifies that there is a clear and
present danger to the security of the United States?
'Mr. Mardian: I think that Congress has already provided that, and
'Q. Well, would you say that Congress would have the power to limit
surveillances to situations where those conditions were satisfied?
'Mr. Mardian: Yes, I wouldI would concur in that, Your Honor.'
A colloquy appearing in the debates on the bill, appearing at 114 Cong.Rec.
14750-14751, indicates that some Senators considered 2511(3) as merely
stating an intention not to interfere with the constitutional powers that the

President might otherwise have to engage in warrantless electronic surveillance.

But the Department of Justice, it was said, participated in the drafting of
2511(3) and there is no indication in the legislative history that there was any
claim or thought that the supposed powers of the President reached beyond
those described in the section. In any case, it seems clear that the congressional
policy of noninterference was limited to the terms of 2511(3).
4

See also Tr. of Oral Arg. 17:

'Q. . . . If all the in camera document contained was what this affidavit
contained, it would not comply with the Safe Streets Act?
'Mr. Mardian: I would concur in that, Your Honor.'

The Government appears to have shifted ground in this respect. In its initial
brief to this Court, the Government quoted the Attorney General's affidavit and
then said, without qualification, 'These were the grounds upon which the
Attorney General authorized the surveillance in the present case.' Brief for
United States 21. Moreover, counsel for the Government stated at oral
argument 'that the in camera submission was not intended as a justification for
the authorization, but simply (as) a proof of the fact that the authorization had
been granted by the Attorney General of the United States, over his own
signature.' Tr. of Oral Arg. 67.
Later at oral argument, however, the Government said: '(T)he affidavit was
never intended as the basis for justifying the surveillance in questtion. . .. The
justification, and again I suggest that it is only a partial justification, is
contained in the in camera exhibit which was submitted to Judge Keith. . .. We
do not rely upon the affidavit itself but the in camera exhibit.' Tr. of Oral Arg.
1415. And in its reply brief, the Government says flatly: 'Those (in camera)
documents, and not the affidavit, are the proper basis for determining the
ground upon which the Attorney General acted.' Reply Brief for United States
9.

Procedures in practice at the time of the request here in issue apparently

resulted in the Attorney General's merely countersigning a request which
asserted a need for a wiretap. We are told that under present procedures the
Attorney General makes an express written finding of clear and present danger
to the structure and existence of the Government before he authorizes a tap. Tr.
of Oral Arg. 1718.

'Whenever any wire or oral communication has been intercepted, no part of the
contents of such communication and no evidence derived therefrom may be
received in evidence in any trial, hearing, or other proceeding in or before any

court, grand jury, department, officer, agency, regulatory body, legislative

committee, or other authority of the United States, a State, or a political
subdivision thereof if the disclosure of that information would be in violation of
this chapter.' 18 U.S.C. 2515.