U.S. Reports: United States v. United States District

UNITED STATES v. UNITED STATES DISTRJCT COURT 297

Syllabus

UNITED STATES v. UNITED STATES DISTRICTCOURT FOR THE EASTERN DISTRICT OF

MICHIGAN ET AL. (PLAMONDONk'T AL;,'

REAL PARTIES IN INTEREST)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FORTHE SIXTH CIRCUIT

No. 70-153. Argued February 24, 1972-Decided June 19, 1972

The United States charged three defendants with conspiring todestroy, and one of them with destroying, Government property.In response to the defendants' pretrial motion for disclosure ofelectronic surveillance information, the Government filed an affi-davit of the Attorney General stating that he had approved thewiretaps for the purpose of "gather[ing] intelligence informationdeemed, necessary to protect the nation from attempts of domesticorganizations to attack and subvert the existing structure of theGovernment." On the basis of the affidavit and surveillance logs(filed in a sealed 'exhibit), the Government claimed that the sur-veillances, though warrantless, were lawful as a -reasonable exer-cise of presidential power to protect the national security. TheDistrict Court, holding the surveillances violative of the FourthAmendment, issued an order for disclosure of the' overheard con-versations which the Court of Appeals upheld. Title III of theOmnibus Crime Control and Safe Streets Act, which' auth6rizescourt-approved electronic surveillance 'for specified crimes, con-tains a provision in 18 U. S. C. § 2511 (3) that nothing in thatlaw limits the President's constitutional power to protect againstthe overthrow of the Government or against "any other clear andpresent danger to the structure or existence of the Government."The Government relies on § 2511 (3) in support of its contentionthat "in excepting national security surveillances from the Act'swarrant requirement, Congress recognized the President's author-ity to conduct such surveillances without prior judicial approval."Held:

1. Section 2511 (3) is merely a disclaimer of congressional intentto define presidential powers in matters affecting national security,and is not a grant of authority to conduct warrantless nationalsecurity surveillances. Pp. 301-308.

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-Syllabus .407 U. S.

2. The Fourth Amendment (which shields private speech fromunreasonable surveillance) requires prior judicial approval for thetype of. domestic security surveillance involved in this case. Pp.314-321; 323-324.

(a) The Government's duty to safeguard domestic securitymust be weighed against the potential danger that unreasonablesurveillances pose to individual privacy and -free expression. Pp.314-315.

(b)' The freedoms of the Fourth Amendment cannot properlybe guaranteed if domestic, security surveillances are conductedsolely within the discretion of the Executive Branch without the'detached judgment of a* neutral magistrate. Pp. 316-318.

(c) Resort to appropriate warrant procedure would notfrustrate the legitimate purposes of domestic security searches.Pp. 318-321.

444 F. 2d 651, affirmed.

POWELL, J., delivered the opinion of the Court, in which DOuGLAs,BRENNN, MARsHALL, STEWART, and BLACKMUN, JJ., joined.DoUoMs, J., filed i concurring opinion, post, p. 324. BURGE, C. J.,concurred in the result. WHrrE, J., filed an opinion concurring inthe judgment, post, p. 335. REIHNQUIST, J., took no part in theconsideration or decision of the case.

Assistant Attorney General Mardian argued the causefor the United States. With him on the brief wereSolicitor General Griswold and Robert L. Keuch.

William T. Gossett argued the cause for respondentsthe United States District Court for the Eastern Dis-trict of Michigan, et al. With him on the brief wasAbraham D. Sofaer. Arthur Kinoy argued the causefor respondents Sinclair et al. .With him on the brief

.were William J. Bender and William Kunstler.

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

.298

UNITED STATES v. UNITED STATES DISTRICT COURT 299

297 Opinion of the Court

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

MR. JUSTICE POWELL delivered the opinion of theCourt.

The issue before us is' an important one for thepeople of our country and their Government. It in-volves the delicate qiestion of the President's power,acting through the Attorney General, to authorize elec-tronic surveillance in internal security matters ,withoutprior judicial approval. Successive. Presidents for morethan one-quarter of a century have authorized such sur-veillance in varying degrees,1 without guidance from theCongress or a definitive decision of this Court.. Thiscase brings the issue here for the first time. Its resolu-tion is a matter of national concern, requiring sensitivityboth to the Government's right to protect itself fromunlawful subversion and attack and to the citizen'sright to be secure in his privacy against unreasonableGovernment intrusion.

This case arises from a criminal proceeding in theUnited States District Court for the Eastern Districtof Michigan, in which the United States charged threedefendants with conspiracy to destroy Government prop-erty in violation of 18 U. S. C. § 371. One of thedefendants, Plamondon, was charged with the dynamitebombing of an office of the Central Intelligence Agencyin Ann Arbor, Michigan.

During pretrial proceedings, the defendants movedto compel the United States to disclose certain electronic

1 See n. 10, infra.

OCTOBER TERM, 1971

Opinion of the Court 407 U. S.

surveillance information and to conduct a hearing todetermine whether this information "tainted" the evi-dence on which the indictment was based or which theGovernment intended 'to offer at trial. In response,the Government filed an affidavit of the Attorney Gen-eral, acknowledging that its agents had overheard con-versations in which Plamondon had participated. Theaffidavit also stated that the Attorney General approvedthe wiretaps "to gather intelligence information deemednecessary to protect the nation from attempts of domes-tic organizations to attack and subvert the existing struc-ture of the Government." 2 The logs of the surveillance

2 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 Govern-

ment's opposition to the disclosure to the defendant Plamondon ofinformation concerning the overhearing of his conversations whichoccurred during the course of electronic surveillances which theGovernment contends were legal.

"3. The defendant Plamondon has participated in conversationswhich were overheard by Government agents who were monitoringwiretaps which were being employed to gather intelligence infor-mation deemed necessary to protect the nation from attempts ofdomestic organizations to attack 'and subvert the existing structureof the Government. The records of the Department of Justicereflect the installation of these wiretaps had been expressly ap-proved by the Attorney General.

"4. Submitted with this affidavit is a sealed exhibit containingthe records of the intercepted conversations, a description of thepremises that were the subjects of surveillances, and copies ofthe memoranda reflecting the Attorney General's express approvalof the installation of the surveillances.

"5. I certify that it would prejudice the national interest todisclose the particular facts concerning these surveillances other thanto the court in camera. Accordingly, the sealed exhibit referredto herein is being submitted solely for the court's in camera inspec-tion and a copy of the sealed exhibit is not being furnished to thedefendants. I would request, the court, at the conclusion of its



were filed in a sealed exhibit for in camera, inspectionby the District Court.

On the basis of the Attorney :General's affidavit andthe sealed exhibit, the Government asserted- that -the-surveillance, was lawfulI though conducted withoutprior judicial approval, as a reasonable exercise of- thePresident's power .(exercised through the Attorney Gen-eral) to .protect the national security. The DistrictCourt held that the surveillance Violated the FourthAmendment, 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 Appealsfor the Sixth Circuit a petition for-a writ of mandamusto set aside the District Court order, which was'stayedpending final disposition of the case. .After, conclud-ing that it had jurisdiction,- that 'court held that thesurveillance was. unlawful. and that the District Courthad properly required disclosure of the overheard con-versations, 444 F. 2d 651 (1971). We granted certiorari,403 U. S. 930.

I.

Title III of the Omnibus Crime Control and SafeStreets Act, 18 U. S. C.. §§ 2510-2520, authorizes theuse of electronic surveillance for classes of crimes care-

hearing on this matter; to place the sealed exhibit in a sealed envelopeand return it to the Department of Justice where it will be retainedunder seal so that it may be submitted to any appellate court thatmay review this matter."

3 Jurisdiction was challenged before the Court of Appeals on theground that the District Court's order was interlocutory and. notappealable under 28 U. S. C. § 1291: On this issue, the court cor-rectly held that it did have jurisdiction, relying upon the All WritsAct, 28 U. S. C. § 1651, and cases cited in its opinion, 444 F. 2d,at 655-656. " No attack was made in this Court as to the appropriate-ness of the writ of mandamus procedure.

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fully specified in 18 U. S. C: § 2516. Such surveillanceis subject to prior court order. Section 2518 sets forththe detailed and particularized. application necessary toobtain such an order as well as carefully circumscribedconditions for its use. The Act represents a compre-hensive attempt by Congress to promote more effectivecontrol of crime while protecting the privacy of indi-vidual thought and expression. Much of Title III wasdrawn to meet the constitutional requirements for elec-tronic surveillance enunciated by this Court in Bergerv. New York, 388 U. S. 41 (1967), and Katz v. UnitedStates, 389 U. S. 347 (1967).

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

"Nothing contained in this chapter or in section605 of the Communications Act of 1934 (48 Stat.1143; 47 U. S. C. 605) shall limit the constitu-tional power of the President to take such measuresas he deems necessary to protect the Nation againstactual or potential attack or other hostile acts ofa foreign power, to obtain foreign' intelligence in-formation deemed essential to the security ofthe United States, or to protect national securityinformation against foreign intelligence activities.Nor shall anything contained in this chapter bedeemed to limit the constitutional power of thePresident to take such measures as he deems neces-sary to protect the United States against the over-throw of the Government by force or other unlawfulmeans, or against any other clear and presentdanger to the structure or existence of the Gov-ernment. The contents of any wire or oral com-munication intercepted by authority of thePresident in the exercise of the foregoing powersmay be received in evidence in any trial hearing,


297. Opinion of the Court

or other proceeding only where such interceptionwas reasonable, and shall not be otherwise used ordisclosed except as is necessary to implement thatpower." (Emphasis supplied.)

The Government relies on § 2511 .(3). It argues that"in excepting national security surveillances from theAct's warrant requirement Congress recognized thePresident's authority to conduct such surveillances with-out prior judicial approval." Brief for United States 7,28. The section thus is viewed as a recognition or affirm-ance of a constitutional authority in the President to con-duct warrantless domestic security surveillance such asthat involved in this case.

We think the language of § 2511 (3), as well as thelegislative history of the statute, refutes thiskinterpreta-tion. The relevant language is that:

"Nothing contained in this chapter ... shall limitthe constitutional power of the President to takesuch measures as he deems necessary to protect ...

against the dangers specified. At most, this is an im-plicit recognition that the President does have certainpowers in the specified areas. Few would doubt this,as the section refers-among other things-to protec-tion "against actual or potential attack or other hostileacts ,of a foreign power." But so far as the use of thePresident's electronic surveillance power is concerned,the language is essentially neutral.

Section 2511 (3) certainly confers no power, -as thelanguage is wholly inappropriate for such a purpose.It merely provides that the Act shall not be interpretedto limit or disturb such power as the President may haveunder the Constitution. In short, Congress simply leftpresidential powers where it found them. This viewis reinforced by the general context of Title III. See-tion 2511 (1) broadly prohibits the use of electronic

OCTOBER TERM, 1971

Opinion of the Court 407 U: S.

surveillance "-[e]xcept as otherwise specifically providedin this chapter." Subsection (2) thereof contains fourspecific exceptions. In each of the' specified exceptions,the statutory language is as follows:

"It shall not be unlawful . . . to intercept" the par-ticular type of commupication described.'

The language of subsection (3), here involved, is tobe Contrasted with the language of the exceptions setforth in the preceding subsection. Rather than statingthat warrantless presidential uses of electronic surveil-lance "shall not be unlawful" and thus employing thestandard language of exception, subsection (3) merelydisclaims any intention to "limit the constitutional powerof the President.."

The express grant of authority to conduct surveil-lances is found in § 2516, which authorizes the AttorneyGeneral to make application to a federal judge whensurveillance. may provide evidence of certain offenses.These offenses are described with meticulous care andspecificity.

Where the Act authorizes surveillance, the procedureto be followed is specified in § 2518. Subsection (1)thereof requires application to a judge of competentjurisdiction for a prior order of approval, and statesin detail the information required in such application.5

4These exceptions relate to certain activities of communicationcommon carriers and the Federal Communications Commission, andto specified situations where a party to the communication hasconsented 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 theinterception of a wire or oral communication shall be made in writ-,ing upon oath or affirmation to a judge of competent jurisdiction


297 Opinion of the Couit

Subsection (3) prescribes the necessary elements of prob-able cause which the judge must find before issuingan order authorizing an interception. Subsection (4)sets forth the required contents of such an order.

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 officermaking the applicatibn, and the officer authorizing the application;

a full aid complete statement of the facts and circumstancesrelied upon by the applicant, to justify his belief that an ordershould be issued, including (i) details as to the particular. offenseithat has been, is being, or is about to be committed, (ii) a par-ticular description of the nature and location of the facilities fromwhich or the place where the communication is to be intercepted,(iii) a particular description of the type of communications soughtto be intercepted, (iv) the identity of the person, if known, com-mitting the offense and whose communications are to be intercepted;

"(c) a full .nd complete statement as to whether or not otherinvestigative procedures have been tried and failed or why theyreasonably appear to be -unlikely to succeed if tried or to be toodangerous;

"(d) a statement of the period of time for which the interceptionis required to be maintained. If the nature of the investigation issuch that the authorization for interception should not automaticallyterminate when the described type of communication has been firstobtained, a particular description of facts establishing probable causeto -believe that additional communications of the' same type willoccur thereafter;.

"(e) a full and complete statement of the facts concerning allprevious applications known to the individual authorizing and mak-ing the application, made to any judge for authorization to intercept,or for approval of interceptions of, wire or :oral communicationsinvolving any of the same persons, facilities or places specified inthe application, and the action taken by the judge on each suchapplication; and

"(f) where the application is for the extension of an order, astatement setting forth the results thus far obtained from the inter-ception, or a reasonable explanation of the failure to obtain suchresults."

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Subsection (5) sets strict time limits on an order. Pro-vision is made in subsection (7) for "an emergencysituation" found to exist by the Attorney General (orby the principal prosecuting attorney of a State) "withrespect to conspiratorial activities threatening the na-tional security interest." In such a situation, emergencysurveillance may be conducted "if an application foran order approving the interception is made ... withinforty-eight hours." If such an order is not obtained,or the application therefor is denied, the interceptionis deemed to be a violation of the Act.

In view of these and other interrelated provisionsdelineating permissible interceptions of particular crim-inal activity upon carefully specified conditions, it.would have been incongruous for Congress to havelegislated with respect to the important and complexarea of national security in a single brief and nebulousparagraph. This would not comport with the sensitivityof the problem involved or with the extraordinary' careCongress exercised in drafting other seftions of theAct. We therefore think the conclusion inescapable thatCongress only intended to make clear that the Actsimply did not legislate with respect to national securitysurveillances. 6

The legislative ,history of § 2511 (3) supports thisinterpretation. Most relevant is the colloquy betweenSenators Hart, Holland, and McClellan on the Senatefloor:

"Mr.HOLLAND.... The section [2511(3) ] fromwhich the Senator [Hart] has read does not affirma-

6 The final sentence of § 2511 (3) states that the contents of aninterception "by authority of the. President in the exercise of theforegoing powers may be received in evidence . . .only where suchinterception was reasonable . ." This sentence seems intendedto assure that when the President conducts lawful surveillance-pursuant to whatever power he may possess--the evidence isadmissible.

UNITED STATES v.. UNITED STATES DISTRICT COURT 307


tively give any power .... -We are not affirmativelyconferring any power upon the President. We aresimply saying that nothing herein shall limit suchpower as the President has under the Constitu-tion .... We certainly do not grant him a thing.

"There is nothing affirmative in this statement."Mr. McCLELLAN. Mr. President, we make it

understood that we are not trying to take anythingaway from him.

"Mr.. HOLLAND. The Senator is correct."Mr. HART. Mr. President, there is no intention

here to expand by this language a constitutionalpower. Clearly we could not do so.

"Mr.. McCLELLAN. Even though intended, wecould not do so.

"Mr. HART .... However, we. are agreed thatthis language should not be regarded as intendingto grant any authority, including authority to put abug on, that the President does not have now.

"In addition, Mr. President, as I think our ex-change makes clear, nothing in-section 2511 (3)even attempts to define the limits of the Presi-dent's national security power under, present law,which I have always found extremely vague ....Section 2511 (8) merely says that if the Presidenthas such a power, then its exercise is in no wayaffected by title III."' (Emphasis supplied.)

7114 Cong. Rec. 14751. Senator McClellan was the'sponsor of thebill. The above exchange constitutes the only time that § 2511 (3)was expressly debated on the Senate or House floor. The Report ofthe Senate Judiciary Committee is not so explicit as the exchangeon the floor, but it appears to recognize that under § 2511 (3) thenational security power of the President-whatever it may be-"isnot to be deemed disturbed." S. Rep. No. 1097, 90th Cong., 2d Sess.,94 (1968). See also The "National Security Wiretap": PresidentialPrerogative or Judicial Responsibility, where the author concludesthat in § 2511 (3) "Congress took what amounted to a position of

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One could hardly expect a clearer expression of con-gressional neutrality. The debate above explicitly in--dicates that nothing in § 2511 (3) was intended toexpand-or to contract or to define whatever presidentialsurveillance powers existed in matters affecting the na-tional security. If we could accept the Government'scharacterization of § 2511 (3) as a congressionally pre-scribed exception to the general requirement of a war-rant, it would be necessary to consider the question ofwhether the surveillance in this case came within theexception and, if so, whether the statutory exception wasitself constitutionally valid. But viewing § 2511 (3) asa congressional' disclaimer and expression of neutrality,we hold that the statute is not the measure of the execu-tive authority asserted in this case. Rather, we mustlook to the constitutional powers of the President.

II

It is important at the outset to emphasize the lim-ited nature of the question before the Court. This caseraises no constitutional challenge to electronic surveil-lance as specifically authorized by Title III of the Omni-bus Crime Control and Safe Streets Act of 1968. Nor.is there any question or doubt as to the necessity ofobtaining a warrant in the surveillance of crimes 'un-related to the national security interest. Katz v. UnitedState's, 389 U. S. 347 (1967); Berger v. New York, 388U. S. 41 (1967). Further, the instant case requiresno judgment on the scope of the President's surveillancepower with respect to the activities of foreign powers,within or without this country. The Attorney General'saffidavit in this case states that the. surveillances were

neutral noninterference on the question of the constitutionality ofwarrantless national security wiretaps authorized by the President."45 S. Cal. L. Rev. 888,'889 (1972).



'"deemed necessary 'to protect tie nation from attemptsof domestic organizations to attack and subvert the ex-isting structure of Government" (emphasis supplied).There tis no evidence of any involvement, directly orindirectly, of a foreign power.s

Our present inquiry, though important, is thereforea narrow one. It addresses a question left open byKatz, supra, at 358 n. 23:

"Whether safeguards other than prior authoriza-tion by- a magistrate would satisfy the FourthAmendment in a situation involving the national-security .2.

The determination of this question requires the essen-tial Fourth Amendment inquiry into .the "reasonable-ness" of the search and seizure in question, and the wayin which that "reasonableness" derives content and mean-

8 Section 2511 (3) refers to "the constitutional power of thePresident" in two types of situations: (i) where necessary to pro-tect against . attack, other hostile acts or intelligence activities of a"foreign power"; or (ii) where necessary to protect against theoverthrow of the Government or other clear and present dangerto the structure or existence of the Government. Although bothof the specified situations are sometimes referred to as "nationalsecurity" threats, the term *'national security"- is used only in thefirst sentence of § 2511 (3) with respect to the activities of foreignpowers. This case involves only the second sentence of § 2511 (3),with the threat .emanating-according to the Attorney General'saffidavit-from "domestic organizations." Although we attempt noprecise definition, we use the term "domestic organization" in thisopinion to mean a group or organization (whether formally or in-formally constituted) composed of citizens of the United States andwhich has no significant connection with a foreign power, its agentsor agencies. No doubt there are cases where it will be difficultto distinguish between "domestic" and "foreign" unlawful activitiesdirected against the Government of the United States where thereis collaboration in varying degrees between domestic groups ororganizations and agents or agencies of foreign powers. But this,is not such a case.

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ing through reference to, the warrant clause. Coolidge v.New Hampshire, 403 U. S. 443, 473-484 (1971).

We begin the inquiry by noting that the Presidentof the United States has the fundamental duty, underArt. II, § 1, of the Constitution, to "preserve, protectand defend the Constitution of the United States." Im-plicit in that duty is the power to protect our Govern-ment against those who would subvert or overthrowit by unlawful means. In the discharge of thisduty, the President-through the Attorney General-may find it necessary to employ electronic surveillanceto obtain intelligence information on the plans of thosewho plot unlawful acts against the Government." Theuse of such surveillance in internal security cases hasbeen sanctioned more or less continuously by variousPresidents and Attorneys General since July 1946.10

g Enactment of Title III reflects congressional recognition of theimportance of such surveillance in combatting various types of crime..Frank S. Hogan, District Attorney for New York County forover 25 years, described telephonic interception, pursuant to courtorder, as "the single most valuable weapon in law enforcement'sfight against organized crime." 117 Cong. Rec. 14051. The "CrimeCommission" appointed by President Johnson noted that "[t]hegreat majority of law enforcement officials believe that the evidencenecessary to bring criminal sanctions to bear consistently on thehigher echelons of organized crime will not be obtained withoutthe aid of electronic surveillance techniques. They maintain thesetechniques are indispensable to develop adequate strategic intelli-gence concerning organized crime, to set up specific investiga-tions, to develop witnesses, to corroborate their testimony, and toserve as substitutes for them-'each a necessary step in the evidence-gathering process'in organized crime investigations and prosecutions."Report by the President's Commission on Law Enforcement andAdministration of Justice, The Challenge of Crime in a Free Society201 (1967).

10 In that month Attorney General Tom Clark advised PresidentTruman of the necessity of using wiretaps "in cases vitally affectingthe domestic security." In May 1940 President Roosevelt had au-



Herbert Brownell, Attorney General under. President

Eisenhower, urged the use of electronic surveillance bothin internal and international security matters on. thegrounds that those acting against the Government

"turn to the telephone to carry on their intrigue.

The success of their plans frequently rests uponpiecing 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 andindustry throughout the country.""

Though the Government and respondents debate theirseriousness and magnitude, threats and acts of sabotageagainst the Government exist in sufficent number tojustify investigative powers with respect to them. 2 Thecovertness and complexity of potential unlawful con-

thorized Attorney General Jackson to utilize wiretapping in matters"involving the defense of the nation," but it is questionable whetherthis language was meant to apply to solely domestic subversion.The nature and extent of wiretapping apparently varied under dif-ferent administrations and Attorneys General, but, except for thesharp curtailment under Attorney. General Ramsey Clark in thelatter years of the Johnson administration, electronic surveillancehas been used both against organized crime and in domestic securitycases at least since the 1946 memorandum from Clark to Truman.Brief for United States 16-18; Brief for Respondents 51-56; 117Cong. Rec. 14056.

11 Brownell, The Public Security and Wire Tapping, 39 CornellL. -Q. 195, 202 (1954). See "also Rogers, The Case For WireTapping,63 Yale L. J. 792 (1954).

12 The Government asserts -that there were 1,562 bombing inci-dents in the United States from January 1, 1971, to July 1, 1971,most of which involved Government related facilities. Respondentsdispute these statistics as incorporating many frivolous incidents aswell as bombings against nongovernmental facilities. The preciselevel of this activity, however, is not relevant to the disposition ofthis case. Brief for. United States 18; Brief for Respondents 26-29;Reply Brief for United States 13.

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duct against the Government and the necessary depend-ency of many conspirators upon the telephone make elec-tronic surveillance an effective investigatory instrumentin certain circumstances. The marked acceleration intechnological developments and sophistication in their usehave resulted in new techniques for the planning,commission, and' concealment of criminal activities. Itwould be contrary to the public interest for Governmentto deny to itself the prudent and lawful employmentof those very techniques which are employed against theGovernment and its law-abiding citizens.

It has been said that "[t]he most basic function ofany government is to provide for the security of theindividual and of his property." Miranda v. Arizona,384 U. S. 436,539 (1966) (WHITE, J', dissenting). Andunless Government safeguards its own capacity to func-tion and to preserve the Security of its people, societyitself could become so disordered that all rights andliberties would be endangered. As Chief Justice Hughesreminded us in Cox v. New Hampshire, 312 U. S. 569,.574 (1941):

"Civil liberties, as guaranteed by the Constitu-tion, imply the existence of an organized societymaintaining public order without which liberty itselfwould be lost in the excesses of unrestrained abuses."

But a recognition of these elementary truths does notmake the employment by Government of electronicsurveillance a welcome development--even when em-ployed with restraint and under judicial supervision.There is, understandably, a deep-seated uneasiness andapprehension that this capability will be used to intrude,upon cherished privacy of law-abiding citizens.18 We

18Professor Alan Westin has written on the likely course. of

future conflict between the value of privacy and the "new tech-nology" of law enforcement. Much of the book details techniques'

* UNITED STATES v. UNITED STATES DISTRICT COURT 313


look to the Bill of Rights to safeguard this privacy.Though physical entry of the home is the 'chief evilagainst which the wording of the Fourth Amendmentis directed, its broader spirit now shields private speechfrom unreasonable surveillance. Katz v. United States,supra; Berger v. New York, supra; Silvermdn v. United'States, 365 U. S. 505 (1961). Our decision in Katzrefused to lock the Fourth Amendment into instancesof actual physical trespass. Rather, 'the Amendmentgoverns •"not only the seizure of tangible items, butextends as well to the recording of oral statementswithout any 'technical trespass under ... local propertylaw.'" Katz, supra, at 353. That decision implicitlyrecognized that the broad and unsuspected governmentalincursions into conversational privacy which electronicsurveillance entails1 necessitate the application ofFourth Amendment safeguards.

National security cases, moreover, often reflect a con-vergence of First and Fourth Amendment. values -notpresent in cases of "ordinary" crime. Though the in-

'vestigaive duty of the executive may be stronger insuch cases, so also is there greater jeopardy to consti-tutionally protected speech. "Historically the struggle.for freedom of speech and press in England was boundup with the issue of the scope of the search and seizure

of physical and electronic surveillance and such possible threatsto personal privacy as psychological and personality testing andelectronic information -storage and retrieval. Not all of the con-temporary threats to privacy emanate directly from the pressuresof crime control. Privacy and Freedom (1967).

14Though the total number of intercepts authorized by stateand federal judges pursuant to Tit. III of the 1968 Omnibus CrimeControl and Safe Streets Act was 597 in 1970, each surveillance mayinvolve interception of hundreds of different conversations. Theaverage intercept in 1970 involved 44 people and 655 conversations,-of which 295 or 45% were incriminating. 11'7 Cong. Rec. 14052.

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power," Marcus v. Search Warrant, 367 U. S. 717, 724(1961). History abundantly documents the tendency ofGovernment-however benevolent and benign its mo-tives--to view with suspicion those who most ferventlydispute its policies. Fourth Amendment protections be-come the more necessary when the targets of official sur-veillance may be those suspected of unorthodoxy in theirpolitical beliefs. The danger to political dissent is acutewhere the Government attempts to act under so vaguea concept as the power to protect "domestic security."Given the difficulty of defining the domestic securityinterest, the danger of abuse in acting to protect thatinterest becomes apparent. Senator Hart Addressed thisdilemma in the floor debate on § 2511 (3):

"As I read it-and this is my fear-we are say-ing that the President, on his motion, could declare--name !your favorite poison-draft dodgers, BlackMuslims, the Ku Klux Klan, or civil rights activiststo be a clear and present danger to the structureor existence of the Government." 15

The price of lawful public dissent must not be a dreadof subjection to an unchecked surveillance power. Normust the fear of unauthorized official eavesdroppingdeter vigorous citizen-dissent and discussion of Govern-ment action in private conversation. For private dis-sent, no less than open public. discourse, is essential toour free society.

III

'As the Fourth Amendment is not absolute in itsterms,. our task is to examine and balance the basicvalues at stake in this case: the duty of Government

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'smisgivings.

UNITEDSTATES v. UNITED STATES DISTRICT COURT 315


to proteet the domestic security, and the potential dangerposed by -unreasonable surveillance to individual privacyand free expression., If the legitimate need of Govern-ment .to safeguard domestic security requires the use ofelectronic surveillance, the question is whether the needsof citizens for privacy and free expression may not bebetter protected by requiring warrant before suchsurveillance is -undertaken- We must also ask whethera warrant requirement would unduly frustrate the effortsof Government to protect itself from .acts of subversionand overthrow directed against it.

Though the Fourth Aiiiendment speaks broadly of.'unreasonable searches and seizures," .the definition of"reasonableness" turns, at least in part, on the: morespecific commands of the" warrant clause. Some .haveargued that '![t]he -relevant .test is not whether it isreasonable to -procure a search warrant, but whetherthe search was. reasonable," United States v. Rabinowitz,'339 U. S. 56, .66 (1950).148 This View, however, over-looks the second -clause of the Amendment.'.'The war-ra"t clause :of the Fourth Amendment is notdead

language.. Rather, -.it has been".a valued part of our constitutional law for decades,and it has determined 'the result in scores andscores 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

1 8This view has not been accepted. In Chirnel v. California, 395U. S. 752 (1969), the, Court considered the Government's contention.that the search be judged on a general "reasonableness" standardwithout reference to the warrant -clause. - The Court concluded thatargument was "founded on little more than a subjective view regard-ing the acceptability of certain sorts of police conduct, afid not onconsiderations relevant to Fourth Amendment interests.. Undersuch. an unconfined analysis, Fourth Amendment protection in thisarea would approach the evaporation point." Id., at .764-765:

OCTOBER TERM, 1971

OQpinion of the 'Court 407 U. S.

--be; an- important Working part of our machineryof government, operating -as a matter of course tocheck the. 'well-intentioned but mistakenly over-zealous executive officers' iwho are a part of anysystem of law enforcement." Coolidge V New Hamp-shire, 403 U. S., at 481.

See also United States. v. Rabinowitz, supra, at 68(Frankfurter, J.,, dissenting); Davis Y. United States,328 U. S. 582, 604 (1946) (Frankfurter, J., dissenting):

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

.Lord Mansfield's formulation touches 'the very heartof the Fourth Amendment directive: that, where prac-tical, a governmental search, and -seizure should repre-sent both the efforts of the officer to gather evidenceof wrongful acts and the judgment of the magistratethatthe collected evidence is sufficient to justify inva-sion of a citizen's private premises or conversation. In-herent in the concept of a warrant is. its issuance by a"neutral and detached magistrate." Coolidge v. NewHampshire, upra, at 453; Katz v. Uinited States, supra,at'356. The further requirement of "'probable cause"instructs the magistrate that baseless searches shall notproceed.

These Fourth Amendment freedoms cannot properlybe guaranteed if domestic security surveillances maybe conducted solely within the discretion of the Execu-

UNITED STATES v: UNITED STATES DISTRICT COURT 317

297 Opinion of the- Court

,tive Branch. The Fourth Amendment does not con:template the executive officers of Government as neutraland disinterested magistrates.. Their duty and responsi-bility are to enforce the..laws, to investigate, and toprosecute. Katz v. United States, supra, at 359-360(DouGLAs, J., concurring).: But those charged with thisinvestigative and prosecutorial duty should not be the'sole judges of when to utilize constitutionally sensitivemeans in pursuing their tasks. The historical judgment,which the Fourth Amendment accepts, is that unreviewed

executive discretion may yield too- readily to pressuresto. obtain incriminating evidence and overlook potentialinvasions of privacy and protected speech."7

It may well be that, in the instant case, the Govern-ment's surveillance of Plamondon's conversations was areasonable one which readily would have gained priorjudicial approval. But this Court "has never sustaineda. search upon -the sole ground that officers reasonablyexpected to find evidence of a particular crime andvoluntarily confined their activities, to the least intru-.sive means consistent with that end." Katz, supra,at 356-357. The Fourth Amendment contemplates aprior judicial judgment,18 not the risk that executive dis-cretion may be reasonably exercised. This judicial roleaccords with our basic constitutional doctrine that in-dividual freedoms will best be preserved through-.aseparation of powers and division of functions amongthe different branches and levels of Government. Har-lan, Thoughts at a Dedication: Keeping the JudicialFunction in Balance, 49 A. B. A. J. 943-944 (1963).The independent check upon executive discretion.is not

17 N. Lasson, The History. and Development of the Fourth Amend-ment to the United States Constitution 79-105 (1937).

18 We use the word "judicial" to connote the traditional FourthAmendment requirement of a neutral and detached magistrate.

OCTOBER TERM, 1971


satisfied, as the Government argues, by "extremelylimited" post-surveillance judicial review.'9 Indeed, post-surveillance review would never reach the surveillanceswhich failed to result in prosecutions. Prior review bya neutral and detached magistrate is the time-testedmeans of effectuating Fourth Amendment rights. Beck'v. Ohio, 379 U. S. 89, 96 .(1964).

It is true that there have been some exceptions tothe warrant requirement. Chimel v. California, 395 U. S.752 (1969); Terry V. Ohio, 392 U. S. 1 (1968) ; McD on-aW v. United States, 335 U. S. 451 (1948); Carroll V.United. State-, 267 U. S. 132 (1925). But those excep-tions are few in number and carefully delineated, Katz,supra, at 357; in general, they serve the legitimate needsof law enforcement officers to protect their own well-being and preserve evidence from destruction. Evenwhile carving out those exceptions, the Court has re-affirmed the principle that the "police must, wheneverpracticable, obtain advance judicial approval of searchesand seizures through the warrant procedure," Terry v.Ohio, supra, at 20; Chimel v. California, supra, at 762.

The Government argues that the special circumstancesapplicable to domestic security surveillances necessitatea further exception to the warrant requirement. It isurged that the requirement of prior judicial review wouldobstruct .the President. in the discharge-of his constitu-tional duty to protect domestic security. We are toldfurther that these surveillances are. directed primarilyto the collecting and maintaining of intelligence with

i9 The Government argues that domestic security wiretaps shouldbe upheld'by courts in post-surveillance review "[ujnless it appearsthat the Attorney General's determination that the proposed sur-veillance relates to a national security matter is arbitrary and capri-cious, i. e., that it constitutes a clear abuse of the broad discretionthat the Attorney General has to obtain all information that will behelpfu to the President in protecting the-Government ." againstthe various unlawful acts in § 2511(3).. Brief for United States 22.


297 Opinion. of the Court

respect to subversive .forces,- and .are not an attempt.to gather evidence for specific criminal prosecutions. Itis said that this type of surveillance should not be sub-ject to traditional warrant..requirements which wereestablished to govern investigation of criinal activity,not. ongoing. intelligence gathering. Brief for UnitedStates 15-16, 23--24; Reply Brief for United States 2-3.

The Government further insists -that courts ."as apractical matter would have -neither- the knowledge. northe techniques necessary to determine whether therewas probable cause to believe that surveillance, was nec-essary to protect national. security.". These securityproblems, the Government contends, involve. "a largenumber of complex and subtle factors' beyond the com-petence of courts to evaluate. Reply Brief for UnitedStates 4.

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

These contentions in behalf of a complete exemp-tion from the warrant requirement, when urged on behalfof the President and the national security in -its domesticimplications; merit the most careful consideration. We

.certainly do not reject them lightly, especially at a timeof .worldwide ferment and when civil disorders in thiscountry are more prevalent than. in the less turbulent

OCTOBER TEAM, 1971

Opinion of the Court, 407 U. S.

periods' of our history. There is, no doubt, pragmaticforce to the Government's position.

But we do not think a case has been made for therequested departure from Fourth Amendment standards.The circumstances- described do not justify completeexemption of domestic security surveillance from priorjudicial scrutiny. Official surveillance, whether its pur-pose be criminal investigation or ongoing intelligencegathering, risks infringement of constitutionally pro-tected privacy of speech. Security surveillances areespecially sensitive because of the inherent vaguenessof the domestic security concept, the necessarily broadand cortinuing nature ot intelligence gathering, and thetemptation to utilize such surveillances to oversee polit-ical dissent. We recognize, as we have before, the con-stitutional basis of the President's domestic, securityrole, but we think it must be exercised in a mannercompatible-with the Fourth Amendment. In this casewe hold that this requires an appropriate prior warrantprocedure.

We cannot accept the Government's argument thatinternal security matters are too subtle and complexfor judicial evaluation. Courts regularly deal with themost difficult issues of our society. There is no reasonto believe that federal judges will be insensitive to oruncomprehending of the issues involved in domesticsecurity cases. Certainly courts can recognize that do-mestic security surveillance involves different considera-tions from the surveillance of "ordinary crime." If thethreat is too subtle or complex for our senior law en-forcement officers to convey its significance to a court,one may question whether there is probable cause forsurveillance.

Nor do we believe prior judicial approval will frac-ture the secrecy essential to official intelligence gather-ing. The' investigation 'of criminal activity has long

UNITED STATES v. UNITED STATFS DISTRICT COURT 321


involved imparting sensitive information to judicial of-ficers who -have respected the confidentialities involved.Judges may be counted upon to. be especially conscious.of security requirements in national security cases. 'TitleIII of the Omnibus Crime Control, and Safe Streets Act •

already has imposed this responsibility on the judiciaryin connection with such crimes as espionage, sabotage,and treason, §§ 2516 (l) (a) and (c), eah of which may-involve domestic as well as foreign security threats.

Moreover, a warrant application involves no public oradversary proceedings: it is an ex parte request before a.magistrate or judge. Whatever security dangers cler-

ical and secretarial personnel may pose can be mini-mized by proper administrative measures, possibly to thepoint of allowing the Government itself to provide thenecessary clerical assistance.

Thus, we conclude that the Government's concernsdo not justify departure in this case from the customaryFourth Amendment requirement of judicial approvalprior to initiation of a search or surveillance. Althoughsome added burden will be imposed upon the AttorneyGeneral, this inconvenience is justified in a free societyto protect constitutional values. Nor do we think theGovernment's domestic surveillance powers will be im-paired to any significant degree. .A prior warrant estab-lishes presumptive validity of. the surveillance and willminimize the .burden of justification in post-surveillancejudicial review. By no means of least importance willbe the reassurance of the public generally that indis-criminate wiretapping and bugging of law-abiding citizenscannot occur.

IV

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

OCTOBER TERM, 1971


as to, the issues which may be involved with respectto activities of foreign powers 'or their agents.2 Nordoes our decision rest on the language of § 2511 (3)or any other section of Title III of the -Omnibus CrimeControl and Safe Streets Act of 1968. That Act doesnot attempt to define or delineate the powers of thePresident to meet domestic threats to the nationalsecurity.

'Moreover, we do not hold that the same type of stand-ards and procedures prescribed by Title III are necessarilyapplicable to this case. ' We recognize that domestic secu-rity surveillance may involve different policy and practicalconsiderations from the surveillance of "ordinary crime."The gathering of security intelligence is often long rangeand involves the interrelation of various sources and typesof information. The exact targets of such surveillancemay be more difficult to identify than in surveillanceoperaions against many types of crime specified inTitle III. Often, too, the emphasis of domestic intelli-gence gathering is on the'prevention of unlawful activityor the enhancement of the Government's preparednessfor some possible future crisis or emergency. Thus, thefocus. of domestic surveillance may be less precise thanthat directed against more conventional: types of crinme.

Given these potential distinctions between Title IIIcriminal surveillances and those involving. the domesticsecurity, Congress may wish to consider protectivestandards for the latter which differ from those alreadyprescribed for specified crimes in Title III. Differentstandards may be compatible with the Fourth Amend-.20 See n. 8, suUra. For the view that warrantless surveillance,

though impermissible in domestic security cases, may be constitu-tional where foreign powers are involved, see United States v. Smith,321 F. Supp. 424, 425-426 (CD Cal. 1971); and American Bar Asso-ciation Project on. Standards for Criminal Justice, Electronic Sur-veillance 120, 121 (Approved Draft 1971, and Feb. 1971 Supp. 11).See also United States v. Clay, 430 F. 2d 165 (CA5 1970).

'UNITED STATES v. UNITED STATES DISTRICT COURT .323

.297 .Opinion .of the Court

ment if they are reasonable both in relation to the legiti-mate need of Government for intelligence information,and the protected rights of our citizens. For the warrantapplication may.vary according to the governmental in-

terest to be enforced -and the nature of citizen rights* deserving protecfion. As the Court said in Camara v.Municipal Court, 387'U. S. 523, 534535 (1967):,

'"In cases in which the Fourth Amendment requires.-that a warrant to search be obtained, 'probable

cause' is the standard by which a particular de-cision -to search is tested against the &onstitutionalmandate of -reasonableness. .. .In determiningwhether a particular inspection is reas0nable-andthus in determining whether there is probable causeto issue a warrant for that inspection-the need forthe inspection must. be weighed in: terms of thesereasonable- goals of code enforcement."

It may be that Congress, for example, would judge thatthe application and affidavit showing probable causeneed not follow the exact requirements of § 2518 but,should allege other circumstances more appropriate todomestic security cases; that the request for prior courtauthorization could, in sensitive cases, be made to. anymember of a specially designated court. (e. g., the DistrictCourt for the -District of Columbia or the Court .ofAppeals for the District of Columbia Circuit);. and thatthe time and reporting requirements need not be so strictas those in § 2518..

The above paragraph does not, of course, attempt toguide the congressional judgment but rather to delineatethe present scope of our own opinion. We do not at-tempt to detail the precise standards for domestic secu-.rity warrants any more than our decision in Katz soughtto set.the refined requirements for the specified criminalsurveillances. which now constitute Title III. We do

OCTOBER TERM, 1971

DouGLAs, J., concurring 407 U. S.

hold, however, that prior judicial approval is required forthe type,.bf domestic security surveillance involved inthis case and that such approval may be made in ac-cordance with such reasonable standards as the Congressmay prescribe.

V

As the surveillance of Plamondon's conversations was.unlawful, because conducted without prior judicial ap-proval, the courts below correctly held that Aldermanv. United States, 394,U. S. 165 (1969), is controlling andthat it requires disclosure to the accused of his own im-permissibly intercepted conversations. As stated inAlderman, "the trial court can and should, where ap-propriate, place a defendant and his counsel under en-forceable orders against unwarranted disclosure of thematerials which they- may be entitled to inspect.". 394U. S., at 185.21

The judgment of the Court of Appeals is hereby

Affirmed.

THE CHIEF JUSTICE concurs in the result.

MR. JUSTICE REHNQUIST took no part in the considera-tion or decision of this case.

MR. JUSTICE DOUGLAS, concurring.

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

This is an important phase in the campaign of thepolice and intelligence agencies to obtain exemptionsfrom the Warrant Clause of the Fourth Amendment.For, due to the clandestine nature of electronic eaves-dropping, the need is acute for placing on the Govern-

2"1 We think it unnecessary at this time and on the facts of this

case to consider the arguments advanced by the Government for are-examination of the basis and scope of the Court's decision inalderman.

324


297 DOUGLAS, J., concurring

ment the heavy burden to show that "exigencies of thesituation [make its] course imperative."' Other abuses,such as the search incident to arrest, have been partlydeterred by the threat of damage actions against of-fending officers,2 the risk of adverse publicity, or thepossibility of reform through the political process.These latter safeguards, however, are ineffective againstlawless wiretapping and "bugging" of which their victimsare totally unaware. Moreover, even the risk of ex-clusion of, tainted evidence would here appear to be-of negligible deterrent value inasmuch as the UnitedStates frankly concedes that the primary purpose ofthese searches is to fortify its intelligence collage ratherthan to accumulate evidence to support indictmentsand convictions. If the Warrant Clause were held in-applicable here, then the federal intelligence machinewould literally enjoy unchecked discretion.

Here, federal agents wish to rummage for months onend through every conversation, no matter how intimateor personal, carried over selected telephone lines, simplyto seize those few utterances which may add to theirsense of the pulse of a domestic underground.

We are told that one national security wiretap lastedfor 14 months and monitored over 900 conversations.Senator .Edward Kennedy found recently that "war-rantless devices accounted for an average of 78 to 209days of listening per device, as compared with a 13-dayper device average for those devices installed undercourt order." ' He concluded that the Government's

1 Coolidge v. New Hampshire, 403 U. S. 443, 455; McDonald v.United States, 335 U. S. 451, 456; Chimel v. California, 395 U. S.752; United States v. Jeffers, 342 U. S. 48, 51.2 See Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U: S. 388.3 Letter from Senator Edward Kennedy to Members of the Sub-

committee on Administrative Procedure and Practice of the SenateJudiciary Committee, Dec. 17, 1971, p. 2. Senator Kennedy included

OCTOBER TERM, 1971

DOUGLAS, J., concurring 407 U. S.

revelations posed "the frightening possibility that theconversations of untold thousands of citizens of thiscountry are being monitored on secret devices which nojudge has authorized and which may remain in opera-tion for months and perhaps years at a time.". Eventhe most innocent and random caller who uses ortelephones into a tapped line can become a flagged'number in the Government's data bank. See Laird v.Tatum, 1971 Term,. No. 71-288.,

Such gross invasions of privacy epitomize the veryevil to which the Warrant Clause was directed. This*Court-.has been the unfortunate witness to the hazardsof police intrusions which did not receive 'prior sanc-tion by independent magistrates. For example, in Weeksv. United States, 232 U. S. 383; Mapp v. Ohio, 367 U. S.643; and Chimel v. California, 395 U. S. 752, entire homeswere ransacked pursuant to warrantless searches. Indeed,in Kremen v. United States, 353 U. S. 346, the entire con-.tents of a cabin, totaling more than 800 items (such as"i Dish' Rag") '. were. seized incident to an arrest ofits occupant and were taken to San Francisco for studyby FBI -agents. In a similar case, Von Cleef v. New

in his letter a chart comparing court-ordered and department-orderedwiretapping and bugging by federal agencies. This, chart is repro-duced in the Appendix to this opinion. For a statistical breakdownby duration, location, and implementing agency. of the 1,042 wire-tap orders issued in 1971 by state and federal judges, see Adminis-.trative Office of the United States Courts; Report on Applicationsfor Orders Authorizing or Approving the Interception. of Wire. orOral Communications for *1971; The Washington Post, May 14,1972,'p. A30,, col. 1 (final ed.)..

4 Kennedy, supra, n. 3, at 2. See also H. Schwartz, A Report on-the Costs and Benefits of Electronic Surveillance (American CivilLiberties Union '1971); Schwartz, The Legitimation of ElectronicEavesdropping: 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. Undted States; 353 U. S. 346, 349.


297 DOUGLAS, J., concurring

Jersey, 395 U. S. 814, police, without a warrant, searchedan arrestee's house for three hours, eventually seizing"several thousand articles, including books, magazines,catalogues, mailing lists, private correspondence (bothopen and unopened), photographs, drawings, and film."Id., at 815. .In Silverthorne Lumber Co. v. United States,251 U. S. 385, federal agents "without a shadow of au-,thority" raided the offices of one of the petitioners (theproprietors of which had earlier been jailed) and "madea clean sweep of all the books, papers and documentsfound there." Justice Holmes, for the Court, termedthis tactic an "outrage." Id., at 390, 391. In Stan-ford v. Texas, 379 U. S. 476, state police seized morethan 2,000 items of literature, including the writings ofMr. Justice Black, pursuant to a general 'search warrantissued to inspect an alleged subversive's home.

That "domestic security" is said to be involved heredoes not draw this case outside the mainstream of FourthAmendment law. Rather, the recurring desire of reigningofficials to employ dragnet techniques to intimidate theircritics lies at the core of that prohibition. For it wassuch excesses as the use of general warrants and thewrits of assistance that led to the ratification of theFourth 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 war-rants utilized here. The Secretary of State hadissued general executive warants to his messengers au-thorizing them to roam abo t and:to seize libelous mate-rial.and libellants of the sovereign. Entick, a critic ofthe Crown, was the victim of. ne such general search dur-ing which his seditious publications were impounded. Hebrought a successful damage action for trespass againstthe messengers. The verdict was sustained- on appeal.Lord Camden wrote that if such sweeping tactics werevalidated, then "the secret cabinets -and bureaus ,of every

OCTOBER TERM, 1971

DouGLAS, J:, concurring 407 U. S.

subject in this kingdom will be thrown open to thesearch and' inspection of a messenger, whenever the sec-retary of state shall think fit to charge, or even to suspect,a person to. be the author, printer, or publisher of aseditious libel." Id., at 1063. In a related and similarproceeding, Huckle v. Money, 2 Wils. K. B. 206, 207, 95Eng. Rep. 768, 769 (1763), the same judge who pre-sided over Entick's appeal held for another victim ofthe same despotic practice, saying "[t]o enter a man's,house by virtue of a .nameless warrant, in order to pro-cure evidence, is worse than the Spanish Inquisition...See also Wilkes v. Wood, 19 How. St. Tr. 1153, 98Eng. Rep. 489 (1763). 'As early as Boyd V. 'UnitedStates, 116 U. S. 616, 626, and as recently, as Stanfordv. Texas, supra, at 485-486; Berger V. New York, 388U. S. 41, 49-50.; and Coolidge v. New Hampshire, supra,at 455 n. 9, the tyrannical invasions described andassailed in Entick, Huckle, and Wilkes, practices whichalso were endured by the colonists,' have 'been rec-

6 "On this side of the Atlantic, the argument concerning the validityof general search warrants centered around the writs of assistancewhich were used by customs officers for the detection of smuggledgoods." N. Lasson, The History and Development of the FourthAmendment to the United States Constitution 51 (1937).. 'In Feb-ruary 1761, all writs expired six months after the death of George IIand Boston merchants petitioned the Superior Court in oppositionto the granting of any new writs. The merchants were representedby James Otis, Jr, who later became a leader in the movement forindependence.

"Otis completely electrified the large audience in the court roomwith his denunciation of England's whole policy toward the Coloniesand with his argument against general warrants. John Adams, thena young man less than twenty-six years of age and not yet ad-mitted to the bar, was a spectator, and many years later described thescene in these oft-quoted words: 'I do say in the most solemn manner,that Mr. Otis's oration against the Writs of Assistance breathed intothis nation the breath of life.' He 'was a flame of fire! Every manof a crowded audience appeared to me to .go away, as I did, readyto take arms against Writs of Assistance. Then and there was the

UNITED STATES v.. UNITED STATFS DISTRICT COURT 329

297 .- DOUGLAS, J., concurring

ognized as the primary abuses which ensured theWarrant Clause a prominent place in our Bill of Rights.See J. Landynski, Search and Seizure and the SupremeCouk't 28-48 (1966). N. Lasson, The History and De-Velopment of the Fourth Amendment to the UnitedStates Constitution 43-78 (1937); Note, WarrantlessSearches In Light of Chimel: A Return To The OriginalUnderstanding, 11 Ariz. L. Rev. 457, 460-476 (1969).

As illustrated by a flood of cases before us this Term,e.. g- Laird V. TatuM, No. 71-288;. Gelbard v. UnitedStates, No. 71-1.10; United States v. Egan, No. 71-263;.United. States v. Caldwell, No. 70-57; United StatesV. Gravel, No. 71-1026; Kleindienst v. Mandel, No.71-16;-. -we are currently in* the, throes of anothernational seizure of paranoia, resembling the hysteriawhich surrounded the Alien and Sedition Acts, thePalmer Raids, and the McCarthy era. Those whoregister dissent :or who petition, their governments forredress are subjected to scrutiny by grand juries," bythe FBI,' or even by the military? Their associates are in-

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 t6 manhood, and declared himself free.'"Id., at 58-59.

7 See Donner & Cerruti, The Grand Jury Network: How theNixon Administration Has Secretly Perverted A Traditional Safe-guard Of Individual Rigl s, 214 The Nation 5 (1972). See alsoUnited States v. Caldwell, 0. T. 1971, No. 70-57; United States v.Gravel, 0. T. 1971, No: 71-1026; Gelbard v. United States andUnited States v. Egdn, 0. T. 1971, Nos. 71-110 and 71-263. Andsee N. Y. Times, July 15, 1971, p. 6, col. 1 (grand jury investigationof N. Y. 'Times staff which published the Pentagon Papers).

8 E. g., N.. Y. Times, April 12, 1970, p. 1, col. 2 ("U. S. ToTighten Surveillance of Radicals"); N. Y. Times, Dec. 14, 1969,p. 1, col. 1 ("F. B. I.'s Informants and Bugs Collect Data On BlackPanthers"); the Washington Post, May 12, 1972, p. D21, col. 5("When the FBI Calls, Everybody Talks"); the Washington Post,

[Footnote 9 is on p. 380]

OCTOBER TERM, 1971

DouGis, J., concurring 407 U. S.

terrogated. Their homes are bugged and their telephonesare wiretapped. They are befriended by secret govern-ment informers. 10 Their patriotism and loyalty are ques-

May 16, 1972, p. B15, col. 5 ("Black Activists Are FBI Targets");the Washington Post, May 17, 1972, p. B13, col. 5 ("BedroomPeeking Sharpens FBI Files"). And, concerning an FBI investiga-tion of Daniel Schorr, a television correspondent critical of the Gov-ernment, 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 buggingof Dr. Martin Luther King by the FBI, see V. Navasky, KennedyJustice, 135-155 (1971). For the wiretapping of Mrs., EleanorRoosevelt 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, 760-761 (1968).

9 See Laird v. Tatum, 0. T. 1971, No. 71-288; see also Federal DataBanks, Computers and the Bill of Rights, Hearings before the Sub-committee on Constitutional Rights of the Senate Committee on theJudiciary, 92d Cong., 1st Sess. (1971); N.,Y. Times, Feb. 29, 1972,p. 1, col. 3.

10 "Informers have been used for national security reasons through-out the twentieth century. They were deployed to combat whatwas perceived to be an internal 'threat from radicals during theearly 192 0 's. When fears began to focus on Communism, groupsthought to have some connection with the Communist Party wereheavily infilirated. Infiltration of the Party itself was so intensethat one former FBI agent estimated a ratio of one informant forevery 5.7 members in 1962. More recently, attention has r~ififtedto militant antiwar and civil rights groups. In part because ofsupport for such groups among university students throughout thecountry, informers seem to' have become ubiquitous on campus.Some insight into the scope of the current use of informers wasprovided by the Media Papers, FBI documents stolen in early1971 from a Bureau office in Media, Pennsylvania. The papers dis-close FBI attempts to infiltrate a conference of* war resisters at

-Haverford College in August 1969, and a convention of the NationalAssooiation of Black Students in June 1970. They also reveal FBIendeavors 'to recruit informers, ranging from bill collectors to apart-ment janitors, in an effort to develop constant surveillance in blackcommunities and New Left organizations' [N. Y. Times, April 8,-1971, p. 22, col. 1]. In Philadelphia's black community, for in-stance, a whole range of buildings 'including offices of the Congress


297. DOUGLAS, J., concurring

tioned." Senator Sam Ervin, who has chaired hearingson military surveillance of civilian' dissidents, " warnsthat '"it is not an exaggeration to, talk in termsof hundreds of thousands of . . dossiers." 12 SenatorKennedy, as mentioned supra, found "the : frighten-ing possibility . that the conversations of untold thou-sands are being monitored on secret devices." Morethan our privacy is implicated. Also. at stake is thereach of 'the Government's pQwer to intimidate its critics.

When the Executive attempts to excuse these tactics as,essential to its defense against internal subversion; weare obliged, to remind it, without apology, of this Court'slong commitment to'the preservation of the Billof Rightsfrom the corrosive environment of precisely such expedi-

of Racial Equality, the Southern Christian Leadership Conference[nd] the .Black Coalition' [ibid.] was singled oit for surveillanceby building employees and other similar informers working for theFBI." Note, Developments In The Law-The National SecurityInterest and Civil Liberties, 85 Harv. L. Rev. 1130; 1272-1273(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 Cen-tury. Fund Task Force on the Government and the Press 29-34,86-97.(1972). For the revelation of Army infiltration of politicalorganizations and spying on Senators, Governors and Congressmen,see Federal Data Banks, Computers and-the Bill of Rights, Hear-ings before the Subcommittee on Constitutional Rights of the SenateCommittee on the Judiciary, 92d Cong., 1st Sess: (1971) (discussed inmy dissent from the denial of certiorari in Williamson v. UnitedStates, 405 U. S. 1026). Among the Media Papers was the suggestionby the FBI that investigation of dissidents be, stepped up inorder to "'enhance the paranoia endemic in these circles and [to]further serve to get the point across there is an FBI agent behindevery 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 peaceadvocates said, by: presidential adviser, to be aiding and abettingthe enemy).

"Amicus curiae brief submitted by Senator Sam Ervin in Lairdv. Tatum, No. 71-288, 0. T. 1971, p. 8.

OCTOBER TERM, 1971

DOUGLAS, J., concurring 407 U.S.

ents.1 As- Justice Brandeis said, concurring in Whitneyv. Calijornm,; :274 U. S. 357, 377: "Those who wonour independence by revo'.ition were not cowards.They did not fear political change. They did notexalt order at the cost of liberty." Chief' JusticeWarren, put it -this way in United States v. Robel,389 U.. S.. 2581, 264: "[T]his concept -of 'nationa l de-fense' cannot. be deemed an end in itself, justifyingany..., power designed to promote such a goal. Implicitin. the term 'national defense' is the notion of defendingthose 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 ... thoseliberties . . . which, [make] the defense of the Nationworthwhile."

The Warrant Clause has stood as a barrier against in-trusions by officialdom into the privacies of life. Butif that barrier were lowered now to permit suspected sub-versives' most intimate conversations to be pillaged thenwhy could not their abodes or mail be secretly searchedby the same authority? To defeat so terrifying a claimof inherent power we need only stand by the enduringvalues served by the Fourth Amendment. As we statedlast Term in Coolidge v. New Hampshire, 403 U. S. 443,455: "In times of unrest, whether caused 'by crime orracial conflict or fear of internal subversion, this basic law

"E. g., New York Times Co. v. United States, 403 U. S. 713;Powell v. MtCormack, 395 U. S. 486; United States v. Robel, 389U. S. 258, 264; Aptheker v. Secretary of State, 378 U. S. 500; Bag-.gett v. Bullitt, 377 U. S. 360; Youngstown Sheet & Tube Co. v.Sawyer, 343 U. S. 579; Duncan v. Kahanamoku, 327 U. S. 304;White v. Steer, 327 U. S. 304; De Jonge v. Oregon, 299 U. S. 353,365; Ex parte Milligan, 4 Wall. 2; Mitchell v. Harmony, 13 How.115. Note, The "National Security Wiretap": Presidential Preroga-tive or Judicial Responsibility, 45 S. Cal. L. Rev. 888, 907-912(1972).

UNITED STATES v.-UNITED STATES DISTRICT COURT 333

297 DouGLAs, J., concurring

and the values that it represents may appear unrealisticor 'extravagant' to some. But the values were those ofthe authors of our fundamental constitutional concepts.In times not altogether unlike our own they won . . . aright of personal security against arbitrary intru-sions..... If times have changed, reducing everyman'sscope. to do as he pleases in an urban and industrialworld; the changes. fiave made the values served.by theFourth Amendment more, not less, important." Wehave as much.*or more to fear from the erosion of *oursense of privacy and independence by the omnipresent'electronic ear of the Government as we do from thelikelihood that fomenters of domestic upheaval willmodify our form of governing.'

14 1 continue in my belief that it would be extremely difficult

to write a search warrant specifically naming the particular con-versations to be seized and therefore any such attempt wouldamount to a general warrant, the very- abuse condemned by theFourth Amendment. As I said, dissenting in Osborn v. United States,385 U. S. 323, 353: "Such devices lay down a dragnet which indis-criminately sweeps in all conversations within its scope, withoutregard to the nature of the conversations, or the participants. Awarrant authorizing such devices is no different from the generalwarrants the Fourth Amendment was intended to prohibit."

OCTOBER TERM, 1971

Appendix to opinion of Douaurs, J., concurring 407 U.S.

APPENDIX TO OPINION OF DOUGLAS, J.,CONCURRING

FEDERAL WIRETAPPING AND BUQ.GING- 1969-1970

Court OrderedDevices

Number30

180

Executive OrderedDevices

Days inUse

4622,363

Ratio of Days UsedExecutive Ordered:

Court Ordered

Minimum17.5*

3.4

Maximum45.0* '

9.6

Number94

113

DaysMinimum(Rounded)

8,1008,100

in UseMaximum(Rounded)

20,80022,600

Average Days in UsePer Device

Court Executive OrderedOrdered Devices.Devices Minimum Maximum

15.4 86.2 221.313.1 71.7 200.0

*Ratios for 1969 are less meaningful than those for 1970, sincecourt-ordered surveillance program was in its initial stage in 1969.Source:

(1) Letter from Assistant Attorney General Robert Mardian toSenator Edward M. Kennedy, March 1, 1971. Source figures with-held at request of Justice Department.

(2) Reports of 'Administrative Office of U. S. Courts for 1969and 1970.

Year19691970

Year19691970


297 WHITE, J.,, concurring in judgment

MR. JUSTICE WHITE, concurring in the judgment.

This case arises out of a two-count indictment chargingconspiracy to injure and injury to Government property.Count I charged Robert Plamondon and two codefend-ants with conspiring with a fourth person to injureGovernment property with dynamite. Count II chargedPlamondon alone with dynamiting and injuring Govern-ment property in Ann Arbor, Michigan. The defendantsmoved to compel the United States to disclose, amongother, things, any logs and records of electronic surveil-lance directed at them, at unindicted coconspirators, orat any premises of the defendants or coconspirators.They also moved for a hearing to determine whether anyelectronic surveillance disclosed had tainted the evidenceon which the grand jury indictment was based and whichthe Government intended to use at trial. They askedfor dismissal of the indictment if such taint were de-termined to exist. Opposing the motion, the UnitedStates submitted an affidavit of the Attorney Generalof the United States disclosing that "[t] he defendant Pla-mondon has participated: in conversations which wereoverheard by Government agents who were monitoringwiretaps which were being employed to gather intelli-gence inf6rmation deemed necessary to protect the na-tion from attempts of domestic organizations to attackand subvert the existing structure of the Government,"the wiretaps having been expressly approved by theAttorney General. The records of the intercepted con-versations and copies of the memorandum reflecting theAttorney General's approval were submitted under sealand solely for the Court's in camera inspection.1

I The Attorney General's affidavit concluded:

"I certify that it would prejudice the national interest to disclosethe particular facts concerning these surveillances other than to thecourt in camera. Accordingly, the sealed exhibit referred to hereinis being submitted solely for the court's in camera inspection and a

OCTOBER TERM, 1971

WHITE, J., concurring in judgment 407 U.S.

As characterized by the District Court, the position of.the United States was that the electronic monitoring ofPlamondon's conversations Without judicial warrant wasa lawful exercise of the power of the President to safe-guard the national security. The District Court grantedthe motion of defendants, holding that the President hadno constitutional power- to employ electronic surveillancewithout warrant to gather information about domesticorganizations. Absent probable cause .and judicial au-thorization, the challenged wiretap infringed Plamondon'sFourth Amendment rights. The court ordered the Gov-ernment to disclose to defendants the records of the

.monitored conversations and directed that a hearing beheld to determine the existence of taint either in the in-dictment or in the evidence to be introduced at trial.

The Government's petition for mandamus to require.the District Court to vacate its order was denied by theCourt of Appeals. 444 F. 2d 651 (CA6 1971). That courtheld that the Fourth Amendment barred warrantlesselectronic surveillance of domestic organizations even iiat the direction of the President. It agreed with the Dis-trict Court that because the wiretaps involved weretherefore constitutionally infirm, the United States mustturn over to defendants the records of overheard con-versations for the purpose of determining whether theGovernment's evidence was tainted.

I would affirm the Court of Appeals but on the stat-utory ground urged by defendant-respondents (Brief 115)without reaching or intimating any views with respect

copy of the sealed exhibit is not being furnished to the defendants.I would request the court, at the conclusion of its hearing on thismatter, to place the sealed exhibit in a sealed envelope and returnit to the Department of .Justice where it will be retained under sealso that it may be submitted to any appellate court that may zoviewthis matter." App. 20-21.

-UNITED STATIESv. UNITED STATES DISTRICT COURT 337

297 WHrm, J., concurring in judgment

to the constitutional issue decided -by both the DistrictCourt and the Court of Appeals.

Title IIi of the Omnibus Crime Control and SafeStreets Act of 1968, 18 U. S. C. §§ 2510-2520, :forbids,under' pain of criminal penalties and civil actions fordamages, any wiretapping or eavesdropping not under-taken in accordance with specified procedures for obtain-ing judicial warrants authorizing the surveillance. Sec-tion 2511 (1) establishes a general prohibition againstelectronic eavesdropping "[e]xcept as otherwise specifi-cally provided" in the statute. Later sections providedetailed procedures for judicial authorization of officialinterceptions of oral communications; when these pro-cedures are followed the interception is not subject tothe prohibitions of § 2511 (1). Section 2511 (2), how.ever, specifies other situations in which the general pro-hibitions of § 2511 (1) do not apply. In addition,§2511'(3) provides that:.

"Nothing contained in this chapter or in section605 of the Communications Act of 1934 (48 Stat.1143; 47 U. S. C. 605) shall limit the constitutionalpower of, the President to take such measures as hedeems necessary to protect the Nation against actualor potential attack or other hostile acts of a for-eign power, to -obtain foreign intelligence informa-tion deemed essential to the security of the UnitedStates, or to protect national security informationagainst foreign intelligence activities. Nor shallanything contained in this chapter be deemed tolimit the constitutional power of the President totake such measures as he deems necessary to protectthe United States against the overthrow of theGovernment by force or other unlawful means, oragainst any other clear and present danger to thestructure or existence of the Government. The con-

OCTOBER TERM, 1971

Wimn, J.,. concurring in judgment 407 U.S.

tents of any wire or oral communication interceptedby authority of the President in the exercise of theforegoing powers may be received in evidence in any

trial hearing, or other proceeding only where suchinterception was reasonable, and shall not be other-wise used or. disclosed except as is necessary toimplement that power."

It is this subsection that lies at the heart of this case.The interception here was without judicial warrant,

it-was not covered by the provisions of § 2511 (2) and itis too clear for argument that it is illegal under § 2511 (1)unless it is saved by § 2511 (3). The majority assertsthat § 2511 (3) • is a "disclaimer" but not an "exception."But however ,it is labeled, it is apparent from the face ofthe section and its. legislative history that if this inter-ception is one of those described in § 2511 (3), it is notreached by the statutory ban on unwarranted electronicegvesdropping.2

The defendants in the District Court moved for theproduction of the logs of any electronic surveillance towhich they might have been subjected. The Govern-

21. cannot agree with the majority's analysis of the import of

§ 2511 (3). Surely, Congress meant at least that if a court deter-mined -that in the specified circumstances the President couldconstitutionally intercept communications without a warrant, thegeneral ban of § 251i. (1) would. not apply. But the limitationon the applicability of § 2511 (1) was not open-ended; it was con-fined to those situations that § 2511 (3) specifically described.Thus, even assuming the constitutionality of a- warrantless surveil-lance authorized by the President to. uncover private or officialgraft, forbidden by federal statute, the interception would be illegalunder § 2511 (1) because it is not the type -of presidential actionsaved bythe Act by the provision of § 2511 (3).. As stated in thetext and n. 3, infra, the United States does not claim that Congressis powerless to require warrants for surveillances that the Presidentotherwise would not be barred by the Fourth Amendment fromundertaking without a warrant. -


297 WHrrE, J., concurring in judgment

ment responded that conversations of Plamondon hadbeen intercepted but took the position that turnover ofsurveillance records was not necessary because the inter-ception complied with the law. Clearly, for the Govern-ment to prevail it was necessary to demonstrate, firstthatthe interception involved was not subject to the statutoryrequirement of judicial approval for wiretapping becausethe surveillance was within the scope of § 2511- (3); and,secondly, if the .Act did .not forbid. the warrantless wire-tap, that the.surveillance was consistent with the-FourthAmendment.

The. United States has made no claim in this case thatthe .statute may not constitutionally be .applied to thesurveillance at issue here.. .Nor has it denied that to

3 See Tr. of Oral Arg.. 13-14:"Q .... I take it from your answer that Congress could forbid

the, President from doing what you suggest he has the power to doin this. case?

"Mr. Mardian [Assistant Attorney General]: That issue is not.before this Court-

"Q. Well, I would-my 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 courtin Colony Catering that within certain limits the Congress couldseverely 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 AttorneyGeneral certifies that there is.a clear and present dauger to thesecurity 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 tolimit surveillances to 'situations where those conditions were satisfied?:

-"Mr. Mardian: Yes, I would-I 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) asmerely stating an intention not to interfere with theconstitutional powers that the President might otherwise have to

OCTOBER TERM, 1971

WHrre, J., concurring in judgment 407 U.S.

comply with the Act the surveillance must either be sup-ported by a warrant or fall within the bounds of the ex-ceptions provided by § 2511 (3). Nevertheless, as I readthe opinions of- the District Court and the Court of Ap-peals, neither court stopped to. inquire whether the chal-lenged interception was illegal under.-the statute butproceeded directly to the constitutional issue withoutadverting to the time-honored rule that courts shouldabjure constitutional issues except where necessary to de-cision of the case before them. Ashwander v. TennesseeValley'Authority, 297 U. S. 288, 346-348 (1936) (con-curring opinion). -Because I conclude that on the recordbefore us the surveillance undertaken by the Governmentin this case was illegal under the statute itself, I find itunnecessary, and therefore improper, to consider ordecide the constitutional questions which the courts belowimprovidently reached.

The threshold statutory question is simply put: Wasthe electronic surveillance undertaken by the Govern-ment in this case a measure- deemed necessary by thePresident to implement either the first or second branchof the exception carved out by § 2511 (3) to the generalrequirement of a warrant?

The answer, it seems to me, must turn on the affidavitof the Attorney General offered by the United States inopposition to defendints' motion to disclose surveillancerecords. It is apparent that there is nothing whatsoeverin this affidavit suggesting that the surveillance was

engage in warrantless electronic surveillance. But the Departmentof Justice, it was said, participated in the drafting of § 2511 (3)and there is no indication in the legislative history that there wasany claim or thought that the supposed powers of the Presidentr eached beyond those described in the section. In any case, it seemsclear that the congressional policy of noninterference was limitedto the terms of § 2511 (3).


297 WHrrE, J., concurring in judgment

undertaken within the first branch of the § 2511 (3)exception, that is, to protect against foreign attack, togather foreign intelligence or to protect national securityinformation. The sole assertion was that the monitoringat issue was employed to gather intelligence information"deemed necessary to protect the nation from attemptsof domestic organizations to attack and subvert the exist-ing structure of the Government." App. 20.

Neither can I.conclude from this characterization thatthe wiretap employed here fell within the exception recog-nized by the second sentence of § 2511 (3); for it utterlyfails to assume responsibility for the judgment that Con-gress demanded: that the surveillance was necessary toprevent overthrow by force or other unlawful means orthat there was any other clear and present danger to thestructure or existence of the Government. The affidavitspeaks,, only of attempts to attack or subvert; it makesno reference to force or unlawfulness; it articulates noconclusion that the attempts involved any clear andpresent. danger to the existence or structure of theGovernment.

The shortcomings of the affidavit when measuredagainst § 2511 (3) are patent. Indeed, the United Statesin oral argument conceded no less. The specific inquiryput to Government counsel was: "Do you think theaffidavit, standing alone, satisfies the Safe Streets Act?"The Assistant Atterney General answered "No, sir. Wedo not rely upon the affidavit itself . .." Tr. of OralArg. 15. 4

Government Counsel, however, seek to save their caseby reference to the in camera exhibit submitted to the

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. Mairdian: I would concur in that, Your Honor."

OCTOBER TERMj 1971

WHITE, J., concurring in judgment 407 U. S.

District Court to supplement .the Attorney General'saffidavit.' It is said that the exhibit includes the re-quest for wiretap approval submitted to the AttorneyGeneral, that the request asserted the need to avert aclear and present danger to the structure and existenceof the Government, and that the Attorney Generalendorsed his approval on the request.' But I am uncon-vinced that the mere endorsement of the Attorney Gen-eral on the- request for approval submitted to him mustbe taken as the Attorney General's own opinion that thewiretap was necessary to: avert a clear and presentdanger to the existence or structure of the Government

5 The Government appears to have shifted ground in this respect.In its initial brief to this Court, the Government quoted the AttorneyGeneral's affidavit and then said, without qualification, "These werethe grounds upon which the Attorney General authorized the sur.veillance in the present case." Brief for United States 21. Moreover,counsel for the Government stated at oral argument "that thein camera submission was not intended as a justification for theauthorization, but simply [as] a proof of the fact that the authoriza-tion had been granted by the Attorney General of the United States,over his own signature." Tr. of Oral Arg. 6-7.* Later.,at oral argument, however, the Government said: ".[T]heaffidavit was never intended as the basis for justifying the sur-veillance in question. . . .: The justification, and again I suggestthat it is only a partial justification, is contained in the in cameraexhibit which was submitted to Judge Keith. . . . We do 'notrely upon the affidavit itself but the in camera exhibit.". Tr. of OralArg. 14-15. And .in its reply brief, the Government says flatly:'Those [in camera] documents, and not the affidavit, are the properbasis for determining the ground upon which the Attorney Generalacted.". Reply Brief for 'United States 9.

6 Procedures in practice at the time of the request here in issueapparently resulted in the Attorney General's merely countersigninga request which asserted a need for a wiretap. We are told thatunder present procedures the Attorney General makes an expresswritten finding of clear and present danger to: the structure and ex-istence of the Government before he authorizes a tap. Tr. of OralArg. 17-18.


297 WgITE, J., concurring. in judgment

when, in an affidavit later filed in court specificallycharacterizing the purposes of theinterception and atleast impliedly the grounds for his prior approval, theAttorney General said only that the tap was undertakento secure intelligence thought necessary to protectagainst attempts to attack and subvert the structur6 ofGovernment. If the Attorney General's approval ofthe interception is to be given a judicially cognizable.meaning different from the meaning he seems to haveascribed to it in his affidavit filed in court, there obvi-ously must be further proceedings in the-District Court.

Moreover, I am reluctant to proceed in the firstinstance to examine the in camera material and eithersustain or reject the. surveillance as a necessary meas-ure to avert the dangers referred to in. § 2511 (3).What Congress excepted .from the warrant requirementwas a surveillance which the President would assumeresponsibility for deeming an-essential measure to pro-tect against clear and.. present danger.. No judge can-satisfy this congressional requirement.

Without the necessary threshold determination, theinterception is, in my opinion, contrary to the terms ofthe statute and subject therefore to the prohibition con-tained in § 2515 against the use of the fruits of thewarrantless electronic surveillance as evidence at anytrial. 7

There remain two additional interrelated reasons for.not- reaching the constitutional issue. First, even if itwere determined that the Attorney General purported to

7 "Whenever any wire or oral communication has been intercepted,no part of the contents of such communication and no evidencederived 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 'therauthority of the United States, a State, or a •political subdivisionthereof if the disclosure of that information would be in violation ofthis chapter." 18 U. S. C. § 2515.

OCTOBER TERM, 1971

WHITE, J.,. concurring in judgment 407 U. S.

authorize an electronic surveillance for purposes exempt,from the general provisions of the Act, there would re-main the issue whether his discretion was properly au-thorized. The United States concedes that the act ofthe Attorney General authorizing a warrantless wiretapis subject to judicial review to some extent, Brief forUnited States 21-23, and it seems improvident to proceedto constitutional questions until it ib determined that theAct itself does not bar the interception here in question.

Second, and again on the assumption that the surveil-lance here involved -fell within the exception providedby § 2511 (3), no constitutional issue need be reachedin this case if the fruits of the wiretap were inadmissibleon statutory grounds in the criminal proceedings pendingagainst iespondent Plamondon. Section 2511 (3) itselfstates that "[t]he contents of any wire or oral communi-cation intercepted by authority of the President in theexercise of the foregoing powers may be received in evi-dence in any trial hearing, or other proceeding onlywhere such interception was reasonable, and shall not beotherwise used or disclosed except as is necessary toimplement that power.". (Emphasis added.) There hasbeen no determination by the District Court that itwould be reasonable to use the fruits of the wiretapagainst Plamondon or that it would be necessary to doso to implement the purposes for which. the tap wasauthorized.

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

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

Documents

U.S. Reports: United States v. United States District