United States v. U.S. District Court for the Eastern District of Michigan, Southern Division Brief Amicus Curiae in Support of Respondents

    IN  T H E

Supreme Court of the United States
O C TO B ER  T E R M , 1971 

-------- f-------

No. 70-153
----♦----

U N IT E D  ST A T E S O F A M E R IC A ,
Petitioner,

v.
U N IT E D  ST A T E S D ISTR IC T C O U R T  FO R  TH E  

E A ST E R N  D ISTR IC T O F M IC H IG A N , 
SO U TH E R N  D IV ISIO N  

and
H O N O R AB LE D A M O N  J. K E ITH ,

Respondents.

-------- f-------

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF THE INTERNATIONAL UNION, 
UNITED AUTOMOBILE, AEROSPACE 

AND AGRICULTURAL IMPLEMENT 
WORKERS OF AMERICA (UAW )

AS AMICUS CURIAE 
IN SUPPORT OF 

RESPONDENTS 
------♦-----

International Union, United Automobile, 
Aerospace and Agricultural Implement 
W orkers of America (U A W )

By: Stephen I. Schlossberg 
M . Jay Whitman

8000 East Jefferson Avenue 
Detroit, Michigan 48214 

General Counsel

Interstate Brief &  Record Co., 1036 Beaubien St., Detroit, Michigan 48226 
W O . 2-8745—W O . 2-8732





TABLE O F C O N T E N T S

Table of Authorities................................     iv

Interest of Amicus........................................................  2
Questions Presented...............   4

Summary of Argument................................................  5

'Introduction .................................................................... 8

Argument ........................................................................ 9
I. The government is claiming an area within 

which the Executive may, without any meaning­
ful safeguards, eavesdrop electronically on 
whomever they see fit......................................... 9
A. Unrestricted electronic surveillance poses a

clear threat to constitutional rights.............. 9
B. The government claims an exception from

any meaningful safeguards.............................  10

1. The government seeks to avoid normal
Fourth Amendment safeguards.................. 10

a. But reliance on the balancing test of
the administrative search area is mis­
placed ......................................................... 11

b. To use a balancing test here is to let
the government judge its own case, 
rendering Fourth Amendment guar­
anties illusory .........................................  18

c. Nor may the government bootstrap 
itself into the foreign intelligence ex­
ception with unsubstantiated insinua­
tions

Page

22



11

(1) The government is attempting to
bootstrap itself into the foreign 
intelligence exception.................. 22

(2) Even assuming arguendo that
domestic radicals are “ interre­
lated” with foreign agents, this 
case does not fall within the for­
eign intelligence exception.......... 25

d. Nor do the years of national security 
surveillance before Kate create any 
exception to the Fourth Amendment 27

(1) It is fallacious to infer an
“ ought” from an “ is” .................  27

(2) Surveillance practices before
Kate are no evidence of constitu­
tional permissibility today.......... 28

2. No other meaningful safeguards have
been suggested by Petitioner.................  29

a. Approval by the Attorney General of­
fers no protection.........................  29

b. Fact that Attorney General may be
answerable, through President, to the 
People is no protection.....................  30

(1) The People will have no way of
knowing about national security 
surveillances ...............................  30

(2) The danger that the President
may be answerable to the People 
is the very reason for the Fourth 
Amendment and approval by an 
independent judiciary.................  30

Page



I ll

c. After-the-fact judicial review for arbi­
trariness is no protection.................  31

II. In the absence of meaningful safeguards, the
danger of abuse is constitutionally intolerable 32

A. The technological sophistication 'of modern
electronic eavesdropping itself raises grave 
doubts about the ability of even the Attor­
ney General to detect or control abuse of 
surveillance ....................................................  33

B. Recent history indicates that the danger of
abuse is substantial......................................... 34

1. The F.B.I. has willfully disregarded the
requirement of prior Attorney General 
approval ....................................................  34

2. Experience indicates that practically 
anyone can be regarded as a fit subject
of national security surveillance.............. 35

C. The government’s own brief is ample evi­
dence of danger of abuse, absent Fourth 
Amendment safeguards.................................  37

1. To perceive abuse one must fully appre­
ciate the difference between what is the
case and what ought to be the case.......... 37

2. Government’s reliance on past practice 40

III. The only hope of preventing and controlling 
abuse is to adhere to Fourth Amendment safe­
guards ...................................................................  41
A. Approval of an independent magistrate be­

fore surveillance begins.................................  41

1. Such review does not deny the authority 
of the Attorney General to defend so­
ciety, it merely controls the methods used 42

Page



IV

2. Nor can the government argue that the
judiciary is incapable of such review... 43

B. Adherence to the disclosure requirements
of Alderm an .......................................... 45

IV. Palmer Raid period provides a clear example
of history the government would doom us to re­
peat ..................................  48

A. In relevant respects, the factual and legal
claims made by the government in that
period are strikingly parallel to those made
here ............................................ 50

Conclusion................... ................................................... 59

TABLE O F A U TH O R ITIE S

Cases

Alderman v. United States, 394 U.S. 165 (1969)
7,10,41,45,46,47, 48

Berger v. New York, 388 U.S. 41 (1967).....................  10
Boyd v. United States, 116 U.S. 616 (1885).............. 10
Camara v. Municipal Court, 387 U.S. 523 (1967 ).... 17
Chicago & Southern Airlines, Inc. v. Waterman

Steamship Corp., 333 U.S. 103 (1948).................  25
Colonnade Catering Corp. v. United States, 397 U.S.

72 (1970) ....................................................................  17
Coolidge v. New Hampshire, 403 U.S. 443 (1971)

12,16, 20, 29
Dennis v. United States, 384 U.S. 855 (1966).......... 47
Federal Bearings Co., 4 NLRB 467 (1937).............. 3
Highway Trailer Co., 3 NLRB 591 (1937).................. 3
Johnson v. United States, 333 U.S. 10 (1938).......... 20, 29
Katz v. United States, 389 U.S. 347 (1967)..........6,28,40
Marcus v. Property Search Warrant, 367 U.S. 717

(1961)............................................................................ 14

Page



V

McDonald v. United States, 335 U.S. 451 (1948 ).... 20
New York Times Co. v. United States, —- U.S. —, 29

Li.ed. 2d 822 (1971)................................................  44
Olmstead v. United States, 277 U.S. 438 (1928) . .. .6, 9,40
Osborn v. United States, 385 U.S. 323 (1966).......... 10
Pearson v. Williams, 202 U.S. 281 (1906).................  51
People v. Fisher, 14 Wend. 9l (N.Y., 1835).................  53
Stanford v. Texas, 379 U.S. 476 (1965).....................  13
Totten v. United States, 92 U.S. 105 (1875).............  26
United States v. Carignan, 342 U.S. 36 (1951).......... 12
United States v. Clay, 430 F.2d 165 (CA 5 ,1 9 7 0 ).... 26
United States v. Curtis-Wright Export Corp., 299

U.S. 304 (1936)........................................................  26
United States v. Kirschenblatt, 16 F.2d 202 (CA 2,

1926) ...............   14
United States v. Robel, 389 U.S. 258 (1967).............  37
United States y. United States District Court, —

F.2d — (CA 6, 1971)............................................  43
Weeks v. United States, 232 U.S. 383 (1913). 41
Wyman v. James, —- U.S. —, 27 L.ed. 2d 408 (1971) 15
Yamataya v. Fisher, 189 U.S. 86 (1903).....................  501, 51
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579 (1952) ..............................................................  26

Constitution and Statutes
United States Constitution:

Article II ................................................. 25,26,27,38,39
First Amendment..................................................  13, 25
Fourth Amendment .................. 5,6,7,13,14,15,20,21,

25, 30, 31,41,42,45
Omnibus Crime Control and Safe Streets Act of 1968,

18 U.S.C. §2510 et seq ....................... ..................... 19, 53

Page



VI

Other Sources

Auerbach, Jerold S., Labor and Liberty: The LaFol- 
lette Committee and the New Deal (Bobbs Mer­
rill ed., 1966).......................................................... 3

Brown, R. Gr., et al., “ To the American People—Re­
port upon the Illegal Practices of the United 
States Department of Justice,” (N Y : American
Civil Liberties Union, 1920)................................. 49

Dickens, Charles, Hard Times (1854 ed .).................  20
Dowell, Eldridge F., A History of Criminal Syndical­

ism Legislation in the United States (1969 ).... 53
Douglas, W. 0., An Almanac of Liberty (Doubledav

ed., 1954) ...........  9,23,42
Federalist, No. 51 (Madison)....................................... 11
Hart, H. L. A., Concept of Law (Oxford ed., 1961).. 45
Hume, David, A Treatise of Human Nature (Claren­

don ed., 1888)............................................................ 27
Indianapolis, News, February 21, 1919...........   53
Locke, John, Second Treatise on Civil Government 

reprinted in E. Barker, ed., Social Contract (Ox­
ford ed., 1968)..........................................  38,39

Navasky, Victor, Kennedy Justice (1971)... .33, 34, 35, 36 
Preston, William, Jr., Aliens and Dissenters (1963) 50,54 
Reuther, Walter, “ U.A.W .: Past, Present and Fu­

ture,” 50 U. Va. L. Rev. 58 (1964).....................  2, 3
San Francisco Chronicle, December 24, 1917.......... 53
San Francisco Chronicle, February 22, 1918.......... 53
Schwartz, Herman, “ The Legitimization of Elec­

tronic Eavesdropping: The Politics of ‘Law and
Order’,” 67 Mich. L. Rev. 455 (1969).................  9

United States Senate, Committee on Education and 
Labor, Industrial Espionage, Report No. 46,
75th Congress, 2d Session (1937).........................  3

Weber, Max, The Theory of Social and Economic 
Organization, A. M. Henderson & T. Parsons,
eds. (Oxford ed., 1947)......................................... 33

Zola, Emile, “ J’accuse! . . .,”  reprinted in The Law
as Literature (Simon and Schuster ed., 1966).. 48

Page



IN  T H E

Supreme Court of the United States
O CTO BER  TE R M , 1971 

--------♦--------

No. 70-153
------ ♦------

U N IT E D  ST A T E S O F A M ER IC A,
Petitioner,

v.
U N IT E D  ST A T E S D ISTR ICT C O U R T  FO R  T H E  

E A STE R N  D ISTR IC T O F M IC H IG A N , 
SO U TH E R N  D IV ISIO N  

and
H O N O R AB LE D A M O N  J. K EITH ,

Respondents.

------ ♦------
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT

------ ♦------

BRIEF OF THE INTERNATIONAL UNION, 
UNITED AUTOMOBILE, AEROSPACE 

AND AGRICULTURAL IMPLEMENT 
WORKERS OF AMERICA (UAW)

AS AMICUS CURIAE 
IN SUPPORT OF 

RESPONDENTS 
-------1-------

The filing of this brief as amicus curiae has been con­
sented to by all the parties under Rule ,42(2) of the Supreme 
Court Rules.



2

IN TE R E ST OF A M IC U S

The UAW is an indnstrial union which, as of November 
1971, represents more than 1,350,000 workers in the auto­
mobile, agricultural implement, aerospace, and other in­
dustries in North America. Of this number nearly 1,- 
234,000 members and their families are citizens of the 
United States, and as such are vitally interested in the 
preservation of their constitutional liberties.

The UAW has a long tradition of defending the civil liber­
ties of not only our members but all Americans. We realize 
that the union is the first victim of authoritarianism, and 
that geniune unionism can flourish only in a democratic 
atmosphere where the rights of the individual are given 
the high priority they deserve. Our past actions and our 
convention resolutions attest this commitment.1

But besides this devotion to civil liberties, the UAW has 
a particular interest in the issues presented by the instant 
case. The UAW and its members know from bitter experi-

1 As the late Walter Reuther put it in “ U AW : Past, Present and 
Future,”  50 U. Via. L. Rev. 58, 98 (1964):

“ The UAW attempts to defend the civil liberties of our mem­
bers and all Americans. Our financial support o f civil liberties’ or­
ganizations and our convention resolution make this abundantly 
clear. For instance, we were among the first to raise our voices 
against McCarthyism, against which the racist formula of the 
McCarran-Walter immigration law, and against the second class 
citizenship forced upon the Negro in America. As participants 
in the labor movement, we realize that the free trade union is the 
first victim of any dictatorship and that genuine unionism can 
flourish only in a democratic atmosphere where the rights of the 
individual are given top priority.”



3

ence what it is to be spied upon.2 In the not-too-distant past, 
political and economic opponents were labeling the IIAW 
*‘ subversive,”  “ dangerous,” and a “ threat to national se­
curity;” then using these labels as an excuse to ride rough­
shod over our precious civil liberties.3 Because of this 
experience the UAW is uniquely well aware of the serious 
threat to our civil liberties posed by the government’s posi­
tion in this case. Present officers of the UAW  have lived 
through surveillance and other denials o f 'basic rights. They 
know full well that the activities of the Justice Department 
in this case have a chilling effect on the First Amendment

2 Jerald S. Auerbach, LABOR AND LIBERTY: THE LaFOL- 
LETTE COMMITTEE AND THE NEW DEAL (Bobbs Merrill ed, 
1966) at 99:

“ The history of organization efforts by automobile workers 
in Flint, Michigan, presented a paradigm o f the destructiveness 
o f industrial espionage. In 1934 the Federal Union of Automobile 
Workers boasted 26,000 members in General Motors plants in that 
city. But of thirteen members of the union’s executive board at 
least three were spies; ,one served as chairman of the organizing 
committee, and another represented the local at a convention where 
plans for new organizing drives were formulated. Within two 
years membership in the Flint local fell to 120. When UAW or­
ganizers came to Flint they found workers who were afraid to 
participate in overt union activities. Clandestine meetings were 
held at night with the lights out, for the frightened men were 
unwilling to risk being identified. The LaFollette Committee con­
cluded that through espionage ‘private corporations dominate their 
employees, deny them their constitutional rights, promote disorder 
and disharmony, and even set at naught the powers of the Gov­
ernment itself.’ ” (emphasis added).

See also: Federal Bearings Co., 4 NLRB 467, 471 (1937); High­
way Trailer Co., 3 NLRB 591, 607, (1937), enf’d per curiam, 95 F. 2d 
1012 (CA 7, 1938); and Reuther, op. cit., 50 U. Va. L. Rev. 58, 59-63; 
and generally, U.S. Senate, Committee on Education and Labor, IN­
DUSTRIAL ESPIONAGE, Report No. 46, 75th Congress, 2d Session, 
1937.

8 “ Employers and detective agency officials advanced several justi­
fications for espionage: protection against radicalism, prevention of 
sabotage, detection of theft.” Auerbach, op. cit., at 99.



4

rights of the members of the UAW.3a We submit that we 
are in a position to help this Court more realistically to 
evaluate the true dangers of the government’s position. 
And we fear that, unless those dangers are fully appre­
ciated, the UAW and Americans generally may yet be 
forced to repeat some of the saddest chapters in this na­
tion’s history.

For these reasons, the International Union, UAW files 
this brief as amicus curiae in support of respondents.

Q U E ST IO N S PR ESEN TED

1. Is the Fourth Amendment violated by electronic sur­
veillance specifically authorized by the President, acting 
through the Attorney General, to gather intelligence in­
formation which the Executive branch deems necessary to 
protect against attempts to overthrow the government by 
force or other unlawful means, or against other clear and 
present dangers to the government’s structure or existence ?

2. I f such national security surveillance is unlawful, 
would it nevertheless be appropriate for a federal district 
court in a criminal prosecution to determine in camera 
whether the interceptions are arguably relevant to the 
prosecution before requiring their disclosure to defendant?

3aWe submit that the UAW is not alone in its apprehension. The 
AFL-CIO recently expressed a similar view in its resolution abhorring 
the unrestricted use of the wiretap.



5

S U M M A R Y  O F A R G U M E N T

Stripped to its basics the government is claiming that 
in the area characterized as “ threats to national security” 
the Executive may, while exempt from any meaningful 
safeguards, tap or electronically bug whomever they see 
fit. Electronic surveillance is dragnet in character, and 
its uncontrolled use poses a clear threat to constitutional 
rights. Nevertheless, the government seeks exemption from 
any meaningful safeguards.

They would avoid normal Fourth Amendment safeguards 
by arguing that “ national security”  surveillances are really 
administrative searches, subject only to a balancing test 
for reasonableness, and that these searches fit within the 
foreign intelligence exception to the Fourth Amendment. 
But reliance on the balancing test of the administrative 
search area is misplaced. Here we are dealing with Con­
stitutional rights, not administrative regulation. Moreover, 
the Fourth Amendment safeguards are particulary im­
portant in this case. The history of the Fourth Amend­
ment clearly shows that it was designed to protect a citi­
zen’s right of free speech from government suspicions of 
subversion and disloyalty. To argue as Petitioner does 
here, that became subversion may be involved this case is 
exempt from Fourth Amendment protections, is to turn 
the purpose of the Fourth Amendment on its head. Thus, 
this surveillance must be presmned arbitrary and unrea­
sonable. Because basic liberties are involved, the govern­
ment bears a heavy burden to show the surveillances both 
well justified and thoroughly safeguarded.

Nor may the government bootstrap itself into the foreign • 
intelligence exception with unsubstantiated insinuations.



6

The government insinuates that domestic radicals are so 
“ interrelated” with foreign intelligence operations as to 
deserve identical treatment. Again the government seeks 
to judge its own case. They offer neither clear evidence 
nor independent judgment of such involvement. Further, 
even if they could show such “ interrelation”, this case does 
not fall within the foreign intelligence exception. Here the 
Executive seeks in peacetime to unilaterally decide that 
domestic organizations of United States civilians are ex­
empt from the protections of the Fourth Amendment. Nor 
does past practice under the Olmstead line of cases estab­
lish the constitutional permissibility of these surveillances 
now that Katz has overruled Olmstead.

No other meaningful safeguards have been suggested by 
Petitioner. Approval by the Attorney General offers no 
protection because he is an interested party. The possible 
answerability of the Attorney General, through the Presi­
dent, to the People is no protection because the People will 
have no information about these surveillances; and because 
the Fourth Amendment was conceived precisely as a safe­
guard against answerability to the People on matters of 
basic liberties. After-the-fact judicial review for arbitrari­
ness is no protection because the standard is weak and the 
government controls the information.

In the absence of meaningful safeguards, the danger of 
abuse is intolerable. I f one category exists practically and 
legally immune from scrutiny or control, no other area can 
he safe. It will be easy to fit troublesome opponents within 
the privileged area, especially if it is as inherently vague 
as “ threat to national security.”

The technological sophistication of modern eavesdropping 
itself raises doubts about the ability of even the Attorney 
General, who is trained as a lawyer, to detect or control



7

abuse of surveillance. Recent history gives little reason 
for optimism. As the Martin Luther King case shows, the 
F.B.I. has wilfully disregarded the requirement of prior 
Attorney General approval. The King experience also 
shows that the Attorney General has no trouble eaves­
dropping on any prominent American, whatever his political 
persuasion, in the interests of “ national security.” Even the 
government’s own brief is ample evidence of the danger of 
abuse, absent Fourth Amendment safeguards. The govern­
ment shows an inability to fully appreciate the difference 
between what is the case and what ought to be the case. 
To lack this ability is to lack the conceptual apparatus 
needed to recognize when an existing policy is unconstitu­
tional, thus the ability to spot abuses. Again, consider 
the government’s attempt to rely on past practice since 
Olmstead has been overruled, this practice only amounts 
to a construction of §605 of the Communications Act. Thus, 
the government is trying to create a constitutional excep­
tion from a statutory construction. Further expansion 
should be simplicity itself.

The only hope o f preventing and controlling abuse is to 
adhere to Fourth Amendment safeguards. Although con­
trol may be difficult, the Constitution requires that we try. 
Adherence to safeguards does not deny the authority of 
the Attorney General to defend society, it merely controls 
the methods he uses. The government cannot argue that 
the judiciary is incapable of prior review of surveillances. 
It is presumptuous and contrary to the whole thrust of the 
Fourth Amendment to tell judicial officers they lack the 
ability to handle complicated cases. Nor can the govern­
ment argue that in camera proceedings are an adequate 
substitute for disclosure under Alderman. The very con­
siderations which Mr. Justice White stressed as requiring 
disclosure are present here, as the government’s brief 
shows. Ald&rmcm is not an exercise of supervisory powers.



8

The Palmer Raid period provides a clear example of 
history the government would doom us to repeat. Some 
years before the raids of 1919-20 this Court gave the gov­
ernment an area within which “ administrative procedures” 
would be totally exempt from the safeguards of the Bill of 
Rights; deportations of resident aliens. There were stand­
ards to prevent abuse, but those standards were applied 
by the Executive. There was after-the-fact judicial review 
for abitrariness. The national security was purportedly 
being protected against the I.W.W., a domestic dissident 
organization. As the I.W.W. was thought to be “ inter­
related” with foreign enemies, it became fair game for un­
restricted espionage. Warrantless, dragnet searches, mass 
arrests and mcommwiicado interrogation became the order 
of the day. Finally, under pressure from men like Felix 
Frankfurter, the President brought his subordinates (in­
cluding J. Edgar Hoover, head of the Justice Department’s 
General Intelligence Division) to heel.

IN T R O D U C T IO N

This brief will focus on the potential for abuse inherent 
in the government’s position. Our purpose is not to dis­
cuss every aspect of the questions presented in exhaustive 
detail. Rather, it is to help this Court more fully to ap­
preciate the grave threat to our basic liberties raised by 
the government’s claims.



9

A R G U M E N T

I.
THE GOVERNMENT IS CLAIMING AN AREA WITHIN 
WHICH THE EXECUTIVE MAY, WITHOUT ANY MEAN­
INGFUL SAFEGUARDS, EAVESDROP ELECTRONICALLY 
ON WHOMEVER THEY SEE FIT.

Stripped to its basics the government is claiming that 
in the area vaguely characterized as “ threats to national 
security” the Executive may, while exempt from any mean­
ingful safeguards, tap or electronically bug whomever they 
see fit. In effect, what is being claimed is an area within 
which the government will be totally privileged, practically 
and legally immune from any effective scrutiny or control.

A . Unrestricted Electronic Surveillance Poses a Clear 
Threat to Constitutional Rights.

The serious threat which indiscriminate eavesdropping, 
whether by tap or electronic bug, poses to basic constitu­
tional liberties has been frequently stressed. As Mr. Jus­
tice Douglas has put it:4

“ Wire tapping, wherever used, has a black rec­
ord. The invasion of privacy is ominous. It is drag­
net in character, recording everything that is said, 
by the innocent as well ,as by the guilty. It ransacks

‘ Win. 0. Douglas, AN ALMANAC OF LIBERTY (Doubleday 
ed., 1954), at 355. See also: H. Schwartz, “ The Legitimization of Elec­
tronic Eavesdropping: The Politics of ‘Law and Order,’ ” 67 Mich. L. 
Rev. 455 (1969); Mr. Justice Braudels, dissenting in Olmstead vs U.S., 
277 U.S. 438, 478 (1928); “ writs of assistance and general warrants 
are but puny instruments of tyranny and oppression when compared 
with wire-tapping” .



10

their private lives, overhears their confessions, and 
probes their innermost secrets. It is specially severe 
in labor espionage, in loyalty investigations, in 
probes to find out what people think.”

In Berger v. New York, 388 U.S. 41, 55-56 (1967), this 
Court wrote:

“By its very nature eavesdropping involves an 
intrusion on privacy which is broad in scope. As 
was said in Osborn v. United States, 385 U.S. 323 
(1966), the ‘ indiscriminate use of such devices in 
law enforcement raises grave constitutional ques­
tions under the Fourth . . . Amendment . . . and 
'imposes a heavier responsibility on this court in 
its supervision of the fairness of procedures . . . ’ 
at 329, n. 7.”

It is, we submit, safe to assume that in the four years since 
Mr. Justice Clark wrote these words electronic eavsedrop- 
ping has become even more sophisticated, even more “ drag­
net in character,” even more of a threat to constitutional 
rights. Thus, the law enforcement agencies who use eaves­
dropping, and the courts who supervise its use bear an even 
heavier responsibility to show that such activities are both 
well justified and thoroughly safeguarded against abuse.

B. The Government Claims an Exemption from any 
Meaningful Safeguards.

1. THE GOVERMENT SEEKS TO AVOID NORMAL FOURTH 
AMENMENT SAFEGUARDS.

There are two safeguards normally used to protect fourth 
amendment rights: prior judicial approval, and disclosure 
under Alderman v. United States, 394 U.S. 165 (1969). The 
government seeks to avoid these safeguards by the related 
arguments: (1) that “national security” surveillances are



11

really administrative searches, subject only to a balancing 
test if they are neither arbitrary nor capricious;5 and (2) 
that surveillance of individuals who, like defendant Pla- 
mondon, are thought dangerous to the national security fits 
within the foreign intelligence exception to the Fourth 
Amendment.6 7

a. But Reliance on the Balancing Test of the Adminis­
trative Search Area is Misplaced.

This Court need not be reminded that the government 
of the United States is one of limited powers. The Bill of 
Bights was designed precisely to ensure that the federal 
government’s powers over the people remained limited. 
The warrant requirement of the Fourth Amendment was 
designed to provide a judicial safeguard against the abro­
gation of power by the Executive branch. Boyd v. United 
States, 116 U.iS, 616 (1885).

The wisdom of this approach is clear. “ I f men were 
angels,”  it was said long ago in the Federalist, “ no govern­
ment would be necessary. I f angels were to govern men, 
neither external nor internal controls on government would 
be necessary. In framing a government which is to be ad­
ministered by men over men, the great difficulty lies in 
this: You must first enable the government to control the 
governed and in the next place oblige it to control itself. 
A  dependence on the people is, no doubt, the primary con­
trol on the government; but experience has taught mankind 
the necessity of auxiliary precautions.” 1

5 Brief of the United States, p. 6.

6 Brief of the United States, p. 7.

7 Federalist, No. 51 (Miadison).



12

The “ auxiliary precaution” at issue here is no mere rule 
of convenience. Here we are dealing with the Fourth 
Amendment. Convenience and inconvenience, efficiency and 
inefficiency are not to the point. As Mr. Justice Douglas 
put it:8 * *

“ Wire tapping, it is said, is essential or impor­
tant in detection of crime. The use of torture is also 
effective in getting confessions from suspects. But 
a civilized society does not sanction it. Wire tap­
ping may catch criminals who might otherwise es­
cape. But a degree of inefficiency is a price we nec­
essarily pay for a civilized, decent society. The free 
state offers what a police state denies—the privacy 
of the home, the dignity and peace of mind of the 
individual. That precious right to be let alone is 
violated once the police enter our conversations.” 
(emphasis supplied).

These sentiments were reaffirmed in Coolidge v. New 
Hampshire, 403 U.S. 443 (1971). In language particularly 
relevant to the instant case, this Court said, 403 U.S. 443, 
455:

“ In times of unrest, whether caused by crime or 
racial conflict or fear >of internal subversion, this 
basic law and the values that it represents may ap­
pear unrealistic or ‘ extravagant’ to some. But the 
values were those of the authors of our fundamen­
tal constitutional concepts. In times not altogether 
unlike our own they won—by legal and constitutional 
means in England, and by revolution of this con­
tinent—a right of personal security against arbi­
trary intrusions by official power. I f  times have

8 Win. 0. Douglas, op. cit., at 354 “ We in this country, however, 
.early made the choice—that the dignity and privacy of the individual
were worth more to society than an all powerful police.” Douglas, J.,
dissenting in United States v. Carignan, 342 U.S. 36, 46 (1951).



13

changed, reducing every man’s scope to do as he 
pleases in an urban and industrial world, the 
changes have made the values served by the Fourth 
Amendment more, not less important.” (emphasis 
added).

I f  a government of limited powers and our Fourth Amend­
ment safeguards mean anything, they mean that the govern­
ment bears the burden of thoroughly justifying any intru­
sion on the citizen’s privacy, and of establishing the exist­
ence o f sound safeguards against abuse. To begin their dis­
cussion, as the government does,9 from the assumption that 
our basic freedoms are to be weighed, as so much ham­
burger, against the efficiencies of hunting subversives, is 
to fly in the teeth of both history and the pronouncements 
of this Court. The history of the Fourth Amendment 
shows that it was designed to protect individual rights 
against arbitrary intrusions of official power, particularly 
when those intrusions are made in the name of preventing 
subversion and disloyalty. The issue is not whether they 
may spy upon suspect citizens until someone shows the spy­
ing to be, on balance, unreasonable. Eather, the point is that 
spying on any citizen, suspect or not, is.

The constitutional presumption against searches and seiz­
ures is particularly strong when First Amendment rights 
are endangered, as they are here, ,Stanford v. Texas, 379 
U.S. 476 (1965), per Stewart, J. Plamondon and his asso­
ciates are, to say the least, politically opposed to the cur­
rent Administration.10 Of course, a defendant’s political

9 Brief of the United States, pp. 5-6.

10 The government admits as much. Attorney General Mitchell’s 
affidavit states that the surveillance in question here was “ deemed 
necessary to protect the nation from attempts of domestic organiza­
tions to attack and subvert the existing structure of Governnment.” 
(Brief o f the United States, p. 3).



14

beliefs are irrelevant in a criminal trial. But the issue here 
is the legality of the tactics used against a criminal defend­
ant. The fact that defendant Plamondon is also a political 
opponent of the current Administration should bring to 
mind Judge Learned Hand’s warning, United States v. 
Kirschmblatt, 16 F. 2d 202, 203 (CA 2, 1926):

“ Nor should we forget that what seems fair 
enough against a squalid huckster of bad liquor may 
take on a very different face, if used by a govern­
ment determined to suppress political opposition 
under the guise of sedition.”

Whether or not the criminal case against defendant Pla­
mondon was brought in order to suppress political opposi­
tion, the mere danger can only reinforce the constitutional 
presumption against surveillance. For, as Mr. Justice 
Brennan’s exhaustive historical discussion in Marcus v. 
Search Warrant, 367 TLS. 717, 724-29 (1961) shows, the 
limits which the Fourth Amendment places on the discre­
tion of officers is to the defense of freedom of expression 
and association, 367 U.S. at 729:

“ The Bill of Bights was fashioned against the 
background of knowledge that unrestricted power of 
search and seizure could ialso be an instrument for 
stifling liberty of expression. For the serious haz­
ard of suppression inhered in the discretion con­
fided in the officers authorized to exercise the 
power.” (emphasis supplied).

I f dissenters know that officers have the unrestricted dis­
cretion to eavesdrop whenever they care to, then fear alone 
will stiff] e free expression. Widespread surveillance never



15

really need be undertaken. A  few episodes will get the 
message across a very effectively chilling dissent.11

Against this background, it becomes clear that the eaves­
dropping in question here cannot even begin to be classi­
fied as an administrative search. This Court has restricted 
warrantless administrative searches to situations where the 
factual setting makes it obvious that adequate safeguards 
are present to prevent significant intrusions upon the in­
terests protected by the Fourth Amendment. Generally, 
such searches are a necessary part of some regulatory 
scheme having little or nothing to do with the prevention 
of criminal activities.

Thus, in Wyman <v. James, 27 L.ed.2d 408 (1971), Mr. 
Justice Blackmun was careful to point out that (a) Ms. 
James consented to the search, (b) that she was not com­
pelled to consent to the search, (c) that home visits were 
necessary to the proper administration of the A.F.D.C. 
program, and (d) that the “ home visit is not a criminal 
investigation, does not equate with a criminal investiga­
tion, and . . .  is not in aid of any criminal proceeding” 
27 L.ed 2d at 417. The search and seizure in question here 
is not remotely similar. As defendant Plamondon was un­
aware of the surveillance, he had no way to refuse consent. 
Indeed, the whole notion of consent is meaningless in the 
surveillance context. While Ms. James could protect her 
privacy, Plamondon could not. While this surveillance

11 For this reason, the government’s assurance that “ very few” 
national security surveillances are actually undertaken (Brief of the 
United States, p. 2:7, n. 10) misses the point. In the First Amendment 
area, even a few are too many. Moreover, it should be noted that the 
government only gives us information on telephone surveillances. It is 
altogether possible that the reason the number of telephone surveil­
lances is declining is that such surveillances have become technologi­
cally outmoded in the last ten years. For aught we know the total 
number of electronic surveillances may have increased dramatically.



16

may not have been originally directed at Plamondon, it 
certainly “ equates” with a criminal investigation. On the 
government’s own showing, this surveillance was needed 
to prevent bombings and other “ covert”, terrorist tactics 
to destroy and subvert the government.12 Bombing, the use 
of terrorist tactics, conspiracy to do either, being an un­
registered agent of a foreign power—these are all criminal 
under the laws of the United States or the several states. 
It must then follow that this surveillance was part of a 
criminal investigation. However, if this surveillance was 
not a necessary part of an effort to investigate and prevent 
these crimes, the government ought to favor this Court with 
an explanation of why such warrantless eavesdropping is 
so essential to protecting our national security. Either 
these surveillances are part of criminal investigations or 
they are not. I f they are, then perhaps they are important 
to national security; but they are certainly not administra­
tive searches.

In either event, the government seeks to use this particu­
lar surveillance “ in aid of”  a criminal proceeding. The 
protestation that “ the Attorney General is gathering in­
telligence information for the President,” rather than 
“ obtaining evidence for use in a criminal prosecution,”13 
has a doubly hollow ring. First, as we have shown, the 
information in which the President is interested is informa­
tion of criminal activities for which there will presumably 
be subsequent criminal prosecution.14 * * * * * * * * Second, even if this

12 Brief o f the United States, pp. 18-19.

13 Brief of the United States, p. 19.

14 This vitiates the government’s attempt to distinguish Coolidge
v. New Hampshire, on the ground that the warrant there was issued
to obtain information for a subsequent criminal prosecution, Brief of
the United States, p. 19, n. 8. Here, the purpose of the surveillance
was also to obtain information for subsequent criminal prosecution. Of
course, it is logically passible that the government intended to stop
the feared conspiracies, bombings and “ terrorist tactics” by some other
means than criminal prosecution and trial by jury. By what other
means, we leave to the 'Court’s imagination.



17

information were gathered for some “ neutral” administra­
tive reason, the government now seeks to use the informa­
tion in a criminal proceeding.

In Camara v. Municipal Court, 387 UjS. 523 (1957), the 
administrative search case on which the government so 
strongly relies,15 this Court, per Mr. Justice White, was 
equally careful to point out that the building inspection in 
question involved, 387 U.S. at 534:

“  . . . significant intrusions upon the interests 
protected by the Fourth Amendment . . . [and] 
that such searches when authorized and conducted 
without a warrant procedure lack the traditional 
safeguards which the Fourth Amendment guaran­
tees to the individual.”

Consequently, this Court held that prior judicial approval 
of the search was required. It is, moreover, interesting 
to note that Mr. Camara came to this Court seek in g  to 
prevent state criminal action against h im .16

In short, neither Camara nor anything else in our history, 
constitution, and case law justifies the government’s reli­
ance on the balancing test in this case.

15 Brief of the United States, pp. 13, 23-4.

16 Similarly, in Colonnade Catering Corp. v. United States, 397 
U.S. 72 (1970), this Court held a warrantless, forcible search for 
liquor illegal. In dissent, Burger,, C.J., and Stewart, J., emphasized 
-that a large liquor store could easily afford the $500—fine for refusal 
to allow inspection, and thereby safeguard the privacy of its store­
room.



18

b. The Government’s Attempt by a Balancing Test to 
take this Case out of the W arrant Requirement 
would Render Fourth Amendment Guarantees Illu­
sory by Allowing the Government to Judge its own 
Case where the Courts are Perfectly Competent.

As we have shown a balancing test may not be applied to 
the warrant requirement in this case, and thus no balanc­
ing may be conceived of, which can exempt the government 
from the warrant requirement here. The government’s 
argument to the contrary perverts both the history of the 
Fourth Amendment and the case law. But even assuming, 
arguendo, that a balancing test is appropriate, to strike the 
balance in the government’s favor here would render the 
Fourth Amendment a nullity.

What vital needs would the government have this Court 
put on their side of the balance? They suggest the follow­
ing needs: to prevent bombings of government and other 
facilities;17 to prevent other “ terrorist activities” ;18 to pre­
vent disclosure of information which, by their nature, are 
highly confidential and must remain secret;19 to prevent 
danger to the lives of informants and agents ;20 to maintain 
uniform standards;21 to protect the government’s ability 
to obtain vital information relating to national security, 
and prevent potential dangers to national security.22

17 Brief of the United States, ip. 18, n. 7.

18 Brief o f the United States, p. 18.
19 Brief of the United States, p. 24; and p. 34, “whose very nature 

requires that they not be made public.”

20 Brief of the United States, p. 24.

21 Brief of the United States, p. 27.

22 Brief of the United States, p. 24.



19

But a closer look at this array reveals that, with one 
exception, each of these considerations is based on informa­
tion exclusively within the government’s possession, or con- 
clusory, or both. Only the government is in a position to 
evaluate the threat of unspecified terrorist activities. Only 
the government can evaluate whatever it is in some informa­
tion’s nature that makes its highly confidential,23 or why it 
must remain secret. Only the government knows who its 
informants and agents are, let alone what dangers may 
threaten them. Of course, we may speculate on the effect 
a lack of uniformity may have on national security sur­
veillance; but (if the government prevails) no one but the 
Executive branch will ever know anything about these sur­
veillances, much less whether their effectiveness is improved 
by the uniform standard imposed by successive Attorneys 
General. On all these points, the government is attempting 
to judge its own case.

The bald assertion that there is a need to protect the 
ability to obtain information relating to national security, 
and to prevent dangers to national security, adds nothing. 
Everyone admits these needs. But the statement that such 
needs exist, without more, tells us nothing about why grant­
ing the government’s claims in cases like this one will ful­
fill such needs. These are mere conclusory assertions.

On one point we are given independent information—the 
need to prevent bombings. However, the government never 
shows why it is that, say, a special warrant under the 
Omnibus Crime Control and Safe Streets Act of 1968, 18 
TT.S.C. §2510 et seq., would make it any more difficult to

23 One is reminded of the ancient explanation of why objects fell. 
It was in their nature, we were solemnly told, to seek the earth.



20

prevent bombings.24 Even with the information supplied 
by a warrantless surveillance, the C.I.A. office in Ann Arbor 
was still bombed.

The Fourth Amendment requires not only evidence from 
which reasonable inferences can be drawn, but also that 
those inferences be drawn by a neutral and detached magis­
trate. As Mr. Justice Stewart put it in Coolidge v. New 
Hampshire, 20 L.ed.2d, 564, 573 (1971) :25

24 The absence of such a showing moves one to wonder if the At­
torney General may not be over-estimating the danger which domestic 
dissidents actually pose to national security. One is reminded of 
Charles Dickens’ description o f the Coketowners in HARD TIMES 
(1854 ed.):

“ Surely there never was such fragile chinaware as that of 
which the millers of Coketown were made. Handle them ever so 
lightly and thel fell to pieces with such ease that you might sus­
pect them of having been flawed before. They were ruined when 
they were required to send laboring children to school; they were 
ruined when inspectors were appointed to look into their works; 
they were ruined when such inspectors considered it doubtful 
whether they were quite justified in chopping people up with their 
machinery; they were utterly undone when it was hinted that per­
haps they need not always make quite so much smoke. Whenever 
a Coketowner felt he was ill-used—that is to say, whenever he was 
not left entirely alone, and it was proposed to hold him account­
able for the consequences of ay of his acts—he was sure to come 
out with the awful menace that he would ‘sooner pitch his prop­
erty into the Atlantic.’ This had terrified the Home Secretary 
within an inch of his life on several occasions. However, the 
Ooketowners were so patriotic after all, that they never had 
pitched their property into the Atlantic yet, but on the contrary, 
had been kind enough to take mightly good care of it. So there it 
was in the haze yonder, and it increased and multiplied.”

25 Quoting Mr. Justice Jackson in Johnson v. U.S., 333 U.S. 10, 
13-14 (1948). “ The right of privacy is deemed too precious to entrust 
to the discretion of those whose job is the detection of crime and the 
arrest of criminals. Power is a heady thing; and history shows that 
the police acting on their own cannot be trusted.” McDonald v. United 
States, 335 U.S. 451, 455-6 (1948).



21

“ The point of the Fourth Amendment, which of­
ten is not grasped by zealous officers, is not that it 
denies law enforcement the support of the usual 
inferences which reasonable men draw from evi­
dence. Its protection consists in requiring that those 
inferences be drawn by a neutral and detached 
magistrate instead of being judged by the officer 
engaged in the often competitive enterprise of fer­
reting out crime. Any assumption that evidence 
sufficient to support ,a magistrate’s disinterested 
determination to issue a search warrant will justify 
the officers in making a search without a warrant 
would reduce the Amendment to a nullity and leave 
the people’s homes secure only in the discretion of 
police officers.”

Here, the government neither offers independent informa­
tion from which the need to perform these surveillances 
can reasonably he inferred; nor would they allow an in­
dependent magistrate make the required inferences. Nor, 
as we show below at pages 43-44, is there any reason to be­
lieve the judiciary incapable of review should the govern­
ment see fit to present the basic information. By presenting 
conclusions rather than facts, the government seeks to avoid 
both the necessity of prior judicial review, and the possi­
bility of a/ny realistic balancing of interests by this Court, 
should such a balancing be found permissible. The Fourth 
Amendment ought not be rendered a nullity.



22

c. Nor M ay the Government Bootstrap Itself into the 
Foreign Intelligence Exception with Unsubstan­
tiated Insinuations.

The government argnes that national security surveil­
lance of domestic groups is “ so interrelated” with sur­
veillance of foreign intelligence operations that the former 
must come within the exception created for the latter.26 
There are two responses to this line of argument.

(1) The government is attempting to bootstrap itself 
into the foreign intelligence exception. Although the sealed 
exhibits now before the Court may contain startling revela­
tions, nothing in the government’s argument suggests any 
evidence from which it may reasonably be inferred that 
either Plamondon, or the organization whose phone was 
tapped, were in any way entwined with the intelligence op­
erations of unfriendly foreign powers. Certainly neither 
the fact that 521 calls went out of the country, nor that 431 
calls dealt with “ foreign” subject matter constitutes such 
evidence.27 It should be remembered that Mr. Plamondon 
and those of his persuasion have opposed the Administra­
tion’s foreign policies. In particular, it is common knowl­
edge that he and other young radicals have opposed the 
military draft. Many draft resisters and other dissatisfied 
Americans now reside in Canada, which is a foreign coun­
try.28 Thus, it is entirely possible29 that a great number of

26 Brief of the United States, pp. 29-34.

27 Brief of the United States, pp. 30-31, n. 13.

28 It should be noted that the large Canadian city of Windsor, 
Ont., is less than fifty miles from Ann Arbor; and that the population 
centers of Ontario are within range o f a cheap phone call from all of 
the major cities in the northern United States.

29 Here we must speculate as the exhibits are sealed.



23

those 521 calls out of the country involved nothing more 
sinister than calls to expatriot friends or discussions with 
foreign groups about the mail (or even the repatriation) of 
United States prisoners of war. Likewise, whenever two 
people discuss foreign affairs, the War in Viet Nam, or the 
international monetary situation, they may be said to have 
dealt with a “ foreign subject matter.”  Thus, it is entirely 
possible30 that a great number of those 431 calls consisted 
of nothing more sinister than constitutionally protected dis­
cussion of current events.

Moreover, even if the government can reveal cooperation 
between domestic radical groups and individuals abroad, 
they have not necessarily established any dangerous inter­
relation with foreign spies. To suggest that such a rela­
tion is necessarily established is to engage in guilt by as- 
socation. Mr. Justice Douglas has written :31

30 Here, again, we must speculate as the exhibits are sealed.

31 Wm. 0. Douglas, op. tit., at 372. Judge Keith, below, put also the 
matter no less eloquently:

“ An idea which seems to permeate much of the Government’s 
argument is that a dissident domestic organization is akin to an 
unfriendly foreign power and must be dealt with in the same 
fashion. There is great danger in an argument of this nature for 
it strikes at the very constitutionnal privileges annd immunities 
that are inherent in United States citizenship. It is to be remem­
bered that in our democracy all men are to receive equal justice 
regardless of their political beliefs or persuasions.

“ The executive branch of our government cannot be given 
the power or the opportunity to investigate and prosecute crim­
inal violations under two different standards simply because cer­
tain accused persons espouse views which .are inconsistent with 
our present form of government.

“ In this turbulent time of unrest, it is often difficult for the 
established and contented members of our society to tolerate, much 
less try to understand, the contemporary challenges to our exist-

( continued on next page)



24

‘ ‘Guilt by association is a dangerous doctrine. It 
condemns one man for the unlawful conduct of 
another. It draws ugly insinuations from an asso­
ciation that may be wholly innocent. In June 1945, 
the Supreme Court stated the American philosophy 
concerning this concept:

‘ . . . Individuals, like nations, may cooperate 
in a common cause over a period of months or 
years though their ultimate aims do not coincide. 
Alliances for limited objectives are well known. 
Certainly those who joined forces with Russia 
to defeat the Nazis may not be said to have made 
an alliance to spread the cause of communism. 
An individual who makes contributions to feed 
hungry men does not become ‘affiliated’ with the 
communist cause because those men are Com­
munists. A different result is not necessarily in­
dicated if aid is given to or received from a pro­
scribed organization in order to win a legitimate 
objective in a domestic controversy. Whether in­
termittent or repeated, the act or acts tending to 
prove ‘ affiliation’ must be of that quality which in­
dicates an adherence to or a furtherance of the 
purposes or objectives of the proscribed organi­
zation as distinguished from mere cooperation 
with it in lawful activities.’ ”  (quoting the 
Bridges case.

It is indeed dangerous to engage in guilt by association— 
to darkly insinuate, without good evidence or independent

(continued from preceding page)

ing form of government. If democracy as we know it, .and as our 
forefathers established it, is to .stand, then ‘attempts of domestic 
organizations to attack and subvert the existing structure of the 
Government’ (see affidavit of Attorney General), cannot be, in 
and of themselves, a crime. Such .attempts become criminal only 
where it can be shown that activity was/is carried on through 
unlawful means, such as the invasion of the rights of others by 
use of force or violence.”



25

judgment, that domestic radicals and foreign spies keep 
such close company that they are indistinguishable; then to 
assume they are indistinguishable; and thence conclude that 
they deserve identical treatment.

(2) Even assuming arguendo, that domestic radicals 
are “ interrelated” with foreign agents, this case does not 
fall within the foreign intelligence exception. The so-called 
foreign intelligence exception to the Fourth Amendment 
is, so the government would have it,32 based on the inherent 
powers of the President over foreign affairs or as Com- 
mander-in-Chief.

But the government’s reliance on Chicago and Southern 
Airlines, Inc. v. Waterman Steamship Corp., 333 U.S. 103 
(1948) and the other foreign affairs cases is misplaced. 
In the very passage of Waterman, quoted in the govern­
ment’s brief,33 the court makes it clear that they have in 
mind the foreign, as distinct from the domestic area, 33 
U.S., at 111 r

“ [T]he very nature of executive decisions as to 
foreign policy is political, not judicial.” (emphasis 
supplied).

More importantly, in Waterman the Court was concerned 
only with the nature of delegated Presidential power over 
air carriers, which had no First or Fourth Amendment im­
plications. By contrast, this case poses very serious threats 
to both Fourth and First Amendment freedoms. As we 
have seen, the standards and approach to such common­
place administrative questions as airline rates, are entirely 
out of place where serious Fourth and First Amendment

32 Brief of the United States, pp. 15 et seq.

33 Brief of the United States, p. 32.



26

issues are raised.34 * * United States m. Clay, 430 F.2d 165 
(CA 5, 1970), relies on Waterman and is therefore dis­
tinguishable.

Nor may the government properly rely on powers in­
herent in the Commander-in-Chief. Youngstown Sheet & 
Tube Co. v. Sawyer, 343 U.S. 579 (1952) settles this point. 
Although the President was claiming a threat to national 
security in a war-time situation, this Court denied the 
Commander-in-iChief the authority to seize the steel mills. 
As Mr. Justice Jackson’s concurrence makes clear, there is 
a world of difference between the President’s plenary 
power over the armed forces in theaters of war, and his 
constitutionally limited power in internal affairs, 343 U.S. 
643-4, 646:

“ There are indications that the Constitution did 
not contemplate that the title Commander in Chief 
of the Army and Navy will constitute him also 
Commander in Chief of the country, its industries 
and inhabitants . . . military powers of the Com­
mander in Chief were not to supersede representa­
tive government of internal affairs . . .  No penance 
would ever expiate the sin against free government 
of holding that a President can escape control of 
executive powers by law through assuming his mil­
itary role.”

Totten v. United States, 92 U.S. 105 (1875), suggests noth­
ing to the contrary. Totten involved a Court of Claims 
case brought by one of President Lincoln’s spies to recover 
expenses incurred while abroad in the Confederacy. Un- 
suprisingly, this Court held that the President had the

34 U.S. v. Curtis-Wright Export Corp., 299 U.S. 304 (1936) in­
volved only Presidential power to embargo munitions exports, and is
distinguishable on similar grounds.



27

authority to dispatch spies into the territory of the enemy. 
By contrast, the instant case involves sending spies abroad 
in our own territory to spy on our own citizens, without any 
independent judicial determination that those citizens are 
about to engage in “ terrorist tactics,” much less civil Avar.

While the foreign intelligence exception perhaps allows 
the President to send spies abroad, or to spy on foreign 
nationals in the Unitel States, it does not allow him unli- 
laterally to decide in peacetime that domestic organizations 
of United States civilians are exempt from the protection 
of the Fourth Amendment.

d. N or do the Years of National Security Surveillance 
Before Katz Create any Exceptions to the Fourth 
Amendment.

The government implies that the fact of thirty years of 
unchecked national security surveillance established their 
right to continue such surveillance.35 There are two re­
sponses :

(1) It is fallacious to infer an “ ought”  from an “ is.”  
Since at least 1739, when David Hume brought the matter 
to our attention, the western world has known that one may 
not logically infer that something ought to be the case from 
the mere fact that something is (or has been) the case.36

35 Brief of the United States, p. 18.

36 David Hume, A TREATISE OF HUMAN NATURE (Claren­
don edition, 1888), Book III, Part I, Section 1, at pages 469-70:

“ I cannot forbear adding to these reasonings an observation, 
which may, perhaps, be found of some importance. In every sys­
tem of morality, which I have hitherto met with, I have always 
remark’d, that the author proceeds for some time in the ordinary

( continued on next page)



28

For if something is (or lias been) the case, is it always 
logically posible that it ought not to be the case any more. 
The government neglects this elemental logical point when 
they seek to imply that, just because the Attorney General 
has been conducting national security surveillances for 
thirty years, he ought to be allowed to continue to do so. 
It is logically possible that he ought not be allowed to con­
tinue to do so.

(2) Surveillance practices before Katz v. United States, 
389 U.S. 347 (1 9 6 7 ) are no evidence of constitutional per­
missibility today. Before Katz came down in 1967 the line 
of cases beginning with Olmstead v. United States, 277 
IBS. 438 (1928), contained the basic law on the constitu­
tional permissibility of electronic surveillance. However, 
as Mr. Justice Harlan recognized in his concurrence, 389 
U.S. at 3612 n., this line of cases was finally overruled by 
Katz.

Although the government’s tradition of national security 
surveillances and their stock memoranda is impressive, they 
are not the point. Practices and administrative interpre­
tations imder Olmstead et seq., are absolutely worthless

( continued from, preceding page)

way of reasoning, and . . . makes observations concerning human 
affairs; when of a sudden I am surpriz’d to find, that instead of 
the usual copulations of propositions, is, and is not, I meet with 
no proposition that this not connected with an ought, or an ought 
not. This change is imperceptible; but is, however, of the last 
consequence. For as this ought, or ought not, expresses some new 
relation or affirmation, ’tis necessary that it shou’d be observ’d 
and explain’d; and at the same time that a reason should be given, 
for what seems altogether inconceivable, how this new relation 
can be a deduction from others, which are entirely different from 
it. But as authors do not commonly use this precaution, I shall 
presume to recommend it to the readers; and am persuaded, that 
this small attention wou’d subvert all the vulgar systems of mo­
rality . . . ”



29

now that Olmstead has been overruled. Since Katz over­
ruled Olmstead, the only practices and administrative in­
terpretations that are relevant to this case are those that 
have taken place since Katz came down in 1967, but the 
government offers none.

2. NO OTHER MEANINGFUL SAFEGUARDS HAVE BEEN 
SUGGESTED BY PETITIONER.

a. Approval by the Attorney General Offers no 
Protection.

The government suggests that we will be protected 
against abuse because the Attorney General will apply the 
same standard in authorizing national security surveillance 
as Congress provided in the Omnibus Crime Control Act 
of 1968.37 38

As we have seen, it is elemental that, if the Fourth 
Amendment means anything, it means that a law enforce­
ment official may not judge his own case. Go olid ge v. New 
Hampshire, 20 L.ed.2d 564-, 573 (1971); Johnson v. United 
States, 333 U.S. 10 (1948). In that the Attorney is the law 
enforcement officer primarily responsible for seeing that 
bombings and other “ terrorist activities”  do not threaten 
the national security,88 it follows that he may not sit in judg­
ment the legality of eavesdropping aimed at uncovering 
just those threats.

Whether he promises to impose a strict or loose stan­
dard is not to the point. He is an interested party. He is 
paid to be suspicious in these matters. Not only is he a 
law enforcement officer. He is the chief law enforcement

37 Brief of the United States, p. 20.

38 Brief of the United States, pp. 19-20.



30

officer of the Federal Government, and as such the man 
directly responsible for ferreting oiut subversives. Thus, 
as such he cannot sit in judgment, whatever the standard. 
An independent magistrate must decide the issue, lest the 
independence of the judiciary lose its meaning.

b. Fact that Attorney General M ay be Answerable, 
Through President, to the People is no Protection.

(1) The People will have no way o f knowing about na­
tional security surveillances. The government would have 
both the existence and content of these surveillances kept 
absolutely secret. If there is no public disclosure, pub­
lic opinion cannot be a check on abuse of these surveil­
lances.

(2) The danger that the President may be ansiverable to 
the People is the very reason for the Fourth Ammdment 
and approved by an independent judiciary,. The Bill of 
Bights was designed to protect individual rights against 
tyranny of the majority. The same is true of the indepen­
dent judiciary. In this respect they are anti-majoritarian. 
Thus, the very answerability of the President and Attorney 
General means that they might sacrifice individual rights 
in the face of strong majority opinion. Therefore, such of­
ficers are inappropriate as ultimate guardians of basic 
liberties.



31

c. After-the-Fact Judicial Review for Arbitrariness is 
no Protection.

The government assures us that “ if the Attorney Gene­
ral should ever abuse his authority in authorizing a sur­
veillance, i.e., if the subject of surveillance bore no reason­
able relation to national security, the courts could correct 
the situation.” 39

As we have already shown, independent judicial review 
must precede the surveillance to be constitutionally ade­
quate under the Fourth Amendment. But even assuming 
arguendo that this surveillance is exempt from the warrant 
requirement, judicial review for arbitrariness would be in­
adequate. Invasion of privacy is something that cannot be 
undone. The very reason for the warrant requirement is 
that privacy cannot be adequately protected by post facto 
review. But even if post facto review were somehow ade­
quate generally, review merely for arbitrariness is worth­
less. The standard is so weak as to render such a review 
a mere palliative, a munificent bequest in a pauper’s will. 
But, as a practical matter, it would be impossible for a pri­
vate citizen to meet even such a weak standard. To show 
arbitrary conduct one would have to have shown that the 
surveillance bore no reasonable relation to national secu­
rity. However, even if “ national security” were not such 
an impossibility vague phrase, one could never meet his 
burden as a practical matter. The Attorney General has 
a monopoly on the information needed to show a lack of 
relation to national security. This information is secret, 
and protected by the Executive privilege. In practical fact, 
this control would be illusory. To be effective judicial re-

39 Brief o f the United (States, p. 35, emphasis supplied.



32

view must occur before the surveillance when the govern­
ment has an incentive to produce their information, and 
before an independent magistrate who can deny the peti­
tion if adequate information is not produced.

n.
IN THE ABSENCE OF MEANINGFUL SAFEGUARDS, THE 
DANGER OF ABUSE IS CONSTITUTIONALLY INTOLER­
ABLE.

If the government is granted what they claim, an area 
within which they may eavesdrop while practically and 
legally immune from any effective scrutiny or control, 
then there will be absolutely no way to check abuse. For if 
one such area exists, then no other area can he safe. To 
justify abusive conduct, one need only use the time-hon­
ored common law maneuver of redescribing a troublesome 
case so that it fits within the inherently vague category 
“ national security,” thereby expanding both your power 
and the category at one stroke.

This enterprise will be particularly easy in the area of 
national security for, as petitioner repeatedly stresses,40 the 
facts in this area are always detailed and complex, the 
inferences always subtle. The more complex and detailed 
the facts, the subtler the inferences, the easier the abusive 
redescription.

40 Brief of the United States, pp. 7, 25.



33

A . The Technological Sophistication of Modern Elec­
tronic Eavesdropping Itself Raises Grave Doubts 
About the Ability of Even the Attorney General 
to Detect or Control Abuse of Surveillance.

The Court need not be reminded of the incredibly high 
levels of sophistication which the technology of electronic 
surveillance has recently attained.

But such powerful technology can itself pose a threat 
to democratic freedoms. As Max Weber has observed A

“ The question is always who controls the exist­
ing machinery and such control is possible only in 
a very limited degree to persons who are not tech­
nical specialists.”

When it comes to electronic surveillance of radicals and 
other threats to the national interest, the experts all work 
at the Federal Bureau of Investigation. But the approvals 
and the protections against abuse, we are told, will come 
from a man trained only as a lawyer, the Attorney Gene­
ral. I f Weber’s observation has any merit, it is reasonable 
to expect the Attorney General will have difficulty detect­
ing, much less controlling, any abuse that may occur be­
cause of overreaching by the technical experts.42 The true 
merit of Weber’s point is amply illustrated by the recent 
history which follows.

41 Max Weber, THE THEORY OF SOCIAL AND ECONOMIC 
ORGANIZATION, A. M. Henderson & T. Parsons, eds., (Oxford ed., 
1947) at 337.

42 Indeed, one journalist suggests this is already true. V. Navasky, 
KENNEDY JUSTICE (1971) at p. 32 writing about Robert Kennedy’s 
tenure as Attorney General:

“ In the war against crime the technical specialists were the 
technical surveillance specialists. Nobody not in the business had

(continued on next page)



34

B. Recent History Indicates that the Danger of Abuse 
is Substantial.

1. THE F.B.I. HAS WILLFULLY DISREGARDED THE RE­
QUIREMENT OF PRIOR ATTORNEY GENERAL AP­
PROVAL.

Consider, for example, the case of Martin Luther King, 
Jr. President Johnson issued a directive on June 30, 1965, 
expressly prohibiting all wiretapping without the specific 
approval of the Attorney General.43 This was un unmistak­
able clarification of what was considered standard policy.44 
We must presume that the F.B.I. and all its agents were 
aware of President Johnson’s directive. Ramsey Clark has 
stated publicly that he never authorized a tap on Martin 
Luther King’s phone from October 3, 1966, when he be­
came Attorney General, until mid-January 1969:45

“ Mr. Hoover repeatedly requested me to au­
thorize P.B J. wiretaps on Dr. King while I was At­
torney General. The last of these requests, none of 
which was granted, came two days before .the mur­
der of Dr. King.” (emphasis supplied).

( continued, from preceding page)

any idea what was going on — and so the question of whether 
Kennedy controlled the electronic eavesdroppers was irrelevant. 
It was never raised. As Henry Ruth, who served in the organ­
ized-crime section at the time, reminisces, “ You look back and 
you feel stupid, ‘We’d get furious because we’d propose an inves­
tigation and they’d say, ‘There’s absolutely nothing there.’ Alow 
I know what this meant—either they knew from bugging that 
there was nothing there, or they knew that whatever was there 
was tainted—it couldn’t :be used as evidence in court because it 
was the result of a bug.” (Emphasis supplied)

43 V. Navasky, op. cit., at 139.

44 Letter from J. Edgar Hoover to Rep. H. R. Gross of December 
7, 1966, reprinted in Navasky, op. cit., at 449.

45 V. Navasky, op. cit., at 140.



35

We must presume he is telling the truth. Nevertheless, an 
F.B.I. agent admitted in a June 1969 hearing in the Cas­
sius Clay case, that he has been assigned to conduct sur- 
villance of Dr. King’s phone until May 1965, but that he 
understood that the tap was continued by the F. B. I. until 
a few days before King was assassinated. As it cannot eas­
ily be assumed that an F.B.I. agent is ever misinformed 
when he makes a statement in open court, the only possi­
ble conclusion is that the F.B.I. intentionally broke the 
law by ignoring both the Attorney General and a specific 
Presidential directive.

The King case is a clear indication of the spirit with 
which the law-enforcement experts at the F.B.I. approach 
the requirement of prior Attorney General approval. As 
Courtney Evans, the liaison agent from the F.B.I. to At­
torney General Kennedy, so succinctly put it :46

“Any law enforcement officer Will tell you it is 
an accepted principle of law enforcement to do 
what has to be done in the best interests of law en­
forcement at the time you are doing it.”

In simpler terms, the men who operate and understand 
electronic surveillance equipment are, by F.B.I. precept, 
above the law.

2. EXPERIENCE INDICATES THAT PRACTICALLY ANY­
ONE CAN BE REGARDED AS A  FIT SUBJECT OF 
NATIONAL SECURITY SURVEILLANCE.

The Dr. King experience, again, provides fresh histori­
cal evidence of the dangers of abuse inherent in the use 
of a vague category like “ dangerous to national security.”

46 Ibid ., at 95.



36

A recent journalistic study of the Kennedy Attorney Gen­
eralship indicates that the original surveillance of Dr. 
King occurred, not because he was suspected of plotting 
sabotage, but because the supporters of the Civil Eights 
Bill wanted to protect both Dr. King (and thus the legis­
lation) from allegations that he was being influenced by 
known subversives.47 As Mr. Katzenbach relates the epi­
sode :48

“ There was some reason to believe that known 
subversives were making efforts to influence Dr. 
King’s movement and the question was how to deal 
with that, how to confirm whether they were or 
not, and under these circumstances, really as much 
for the protection of Dr. King as for any other rea­
son, and not because of any suspicion or feeling 
that Dr. King himself was in any way subversive 
or disloyal, Mr. Kennedy authorized a tap.”

So it seems that at least one Attorney General of recent 
times has interpreted “ dangerous to national security” to 
include anyone who is potentially subject to smear tactics, 
and may thereby endanger an important piece of legisla­
tion. Such an interpretation has a frightening sweep. It 
includes practically every politically prominent American, 
whatever his position on the political spectrum.

Thus, recent experience shows that in the absence of the 
Fourth Amendment safeguards the Attorney General can­
not be relied upon to control either the F.B.I. or himself.

47 For a complete account see V. Navasky, op. ait., pp. 135-155.
48 Quoted in ibid,., p. 149.



37

C. The Government’s Own Brief is Ample Evidence 
of Danger of Abuse, Absent Fourth Amendment 
Safeguards.

1. TO PERCEIVE ABUSE ONE MUST FULLY APPRE­
CIATE THE DIFFERENCE BETWEEN W HAT IS THE 
CASE AND W HAT OUGHT TO BE THE CASE.

It is impossible to recognize abuse of authority, even 
when directly confronted with an example, if one does 
not fully understand the difference between what the cur­
rent practices, policies and institutional arrangements are, 
and what they constitutionally ought to he. To uncritically 
identify the current set of policies with the ideal govern­
ment contemplated by the Constitution, is to reveal a lack 
of conceptual tools needed to spot failures .to live up to the 
Constitution. I f one sees no difference between the real 
and the ideal, one will be unable to see when present poli­
cies are unconstitutional, or otherwise out of step with 
the basic values on which a democracy rests. This, is a dan­
gerous inability, as this Court saw in United States v. Re­
bel, 389 U.S. 258, 664 (1967):

“ For ,almost two centuries, our country has taken 
a singular pride in the democratic ideals enshrined 
in its Constitution . . .  It would indeed be ironic 
if, in the name of national defense, we would sanc­
tion the subversion of one of those liberties . . . 
which makes the defense of the Nation worthwhile.”

The government’s brief demonstrates just such a dan­
gerous inability. First, consider their argument that thirty 
years of national security eavesdropping on the citizenry 
somehow justifies what was done in this case. Not only is 
.their logic faulty,49 but the argument assumes that merely

49 See above, p. 23.



38

because these activities have been carried they embody 
our constitutional ideals. Nothing could be further from the 
truth. I f this were the case, orderly social progress would 
cease, and democracy stagnate. Some activities of our offi­
cials may be better or worse than others, but it is dan­
gerous in the extreme to infer that because something is of­
ficial policy it can ipso facto be identified with the re­
quirements of the Constitution and democracy.

Second, consider the language used in their brief. The 
Solicitor General sides indiscriminately back and forth be­
tween the need to preserve “  society” 50 and the need to pre­
serve the existing system of government, i.e. existing gov­
ernmental policies. Although the distinction between these 
two is crucial, he does not seem to have appreciated it. For 
instance, we are told that the President has the duty to 
“ defend the Constitution and the government created by 
it.”51 But what happens if the government acts contrary 
to the Constitution, as Respondents argue here? In that 
case, the President’s clear duty is to the Constitution, not 
to the acts which abuse it. This is no less true if adherence 
to Constitutional ideals endangers the security of uncon­
stitutional policies or institutions. The controlling duty is 
the Constitution. The President only has a duty to defend 
existing policies only as long a\s they are constitutional. 
Indeed, if the policy in question is unconstitutional he 
has an affirmative duty to attack it. The President’s duty 
to defend policies and institutions which are admittedly 
constitutional is not to the point in this case. Here the is-

50 In the sense of “ social organization,”  see John Locke, SECOND1 
TREATISE ON CIVIL GOVERNMENT, reprinted in E. Barker, ed., 
SOCIAL CONTRACT (Oxford ed., 1968). “ Society” is thus distin­
guished from “government,” the latter being the particular existing 
institutional organization.

51 Brief of the United States, p. 15.



39

sue is whether certain existing policies are constitutional. 
I f one automatically conflates the Constitution and the 
government, that issue is easily missed.

We are told that “ a fundamental right of any society 
is to preserve itself and to maintain its government as a 
functioning and effective organism.”52 To he sure, a so­
ciety53 has the right to preserve itself and its government. 
But the President is not society. He is just the fiduciary 
of society. The only functioning and effective government 
which he has any right to preserve is a constitutional 
government, i.e. a government in accord with the will of 
society. The only policies which he has any right to pre­
serve are constitutional policies. The right of society to 
maintain its constitutionally chosen government is not 
before this Court. When the government suggests that it 
is, they reveal an inability to distinguish between them­
selves and the authority of the People.54

Again, we read “ the President must protect the govern- 
ment/and thereby the society for whose benefit it exists

52 Brief of the United States, p. 15.

53 In the Lockean sense, .see above.

54 This mistake is made repeatedly, e.g., we are told that the duty 
of protecting “ the existing system” is implicit in the “responsibility 
for insuring [the viability of] our system of government,” Brief of the 
United States, p. 15. But the former is only implicit insofar as the 
existing system is constitutional, which is the point here at issue. In 
Attorney General Mitchell’s affidavit, Brief of the United States, p. 3, 
he speaks of the need to protect the nation from attack on “ the exist­
ing structure o f the government.”  At p. 14, the Solicitor General again 
asserts that the issue here is the “ protection of the f  abric of society it­
self” and the “ existence of an organized society.” Perhaps so, but only 
insofar as the government is trying to rend the fabric of the Fourth 
Amendment.



40

. . . ”55 But protecting the government is only protecting 
society insofar as the policies are being protected are 
constitutional. I f they are not, then protecting the policies 
is attacking society. By protecting the existing govern­
ment one does not thereby automatically protect society. 
The real subversive is the man who protects the existing 
government without ever considering the possibility that 
these officials may be doing something unconstitutional.

I f the government is unable to appreciate this elemen­
tal distinction when preparing a brief to the Supreme 
Court of the United States, we hesitate to imagine what 
happens in the hustle and rush of everyday law enforce­
ment. Our constitutional liberties ought not hang by so 
fine a thread.

2. GOVERMENT’S RELIANCE ON PAST PRACTICE.

The government’s attempt to use past eavesdropping 
practices to establish their constitutional claim is itself 
the best evidence of their willingness to expand any “ na­
tional security” beyond all limits.

As was argued above, because Katz overruled the Olm- 
stedd line of cases, past eavesdropping practices under 
Olmstead establish nothing about a constitutional claim 
being made under Katz. This being the case, all this past 
practice really establishes is an interpretation o f Section 
605 of the Communications Act of 1934. Thus, what the 
government is trying to do in this case is argue that a 
construction of <a statute by past practice establishes a 
constitutional exception to the Fourth Amendment. I f the 
government can so easily infer exceptions to the Gonsti-

55 Brief of the United States, p. 18.



41

tution from practices under a statute, it should be sim­
plicity itself to infer the right to eavesdrop on whomever 
they please from the right to eavesdrop on ‘dangers to 
the national security.”

in.
THE ONLY HOPE OF PREVENTING AND CONTROLLING 
ABUSE IS TO ADHERE TO FOURTH AMENDMENT SAFE­
GUARDS.

The only effective safeguards against abuse of elec­
tronic surveillance are those provided by the Fourth 
Amendment: (1) approval of an independent magistrate 
before surveillance begins; and (2) adherence to the dis­
closure requirements of Alderman v. United States, 394 
U.S, 165 (1969).

A . Approval of an Independent Magistrate Before 
Surveillance Begins.

Difficult as it may sometimes be to control abuses of 
electronic surveillance, the Constitution requires that we 
try. For the courts to leave the field merely because abuses 
will be difficult to detect and correct is to sanction official 
abuse by default. As early as Weeks v. United States, 232 
U.S. 383, 390 (1913) this Court recognized that such a 
course is unthinkable:

“ The tendency of those who execute the criminal 
laws of the country to obtain conviction by means 
of unlawful seizures and enforced confessions, the 
latter often obtained after subjecting accused per­
sons to unwarranted practices destructive of rights 
secured by the Federal Constitution, should find no 
sanction in the judgments of the courts, which are 
charged «lt all times with the support of the Con-



42

stitution, and. to which people of all conditions have 
a right to appeal for the maintenance of snch fun­
damental rights.” '(emphasis supplied)

Of course, .a clear constitutional requirement of prior ap­
proval by an independent magistrate will not guarantee 
that the F. B. I. and. the Attorney 'General will not abuse 
their authority. But no ruling of this Court ever .guaran­
tees any result in that sense. Were such a guarantee re­
quired there could be no rule of law.

1. SUCH REVIEW DOES NOT DENY THE AUTHORITY 
OF THE ATTORNEY GENERAL TO DEFEND SOCIETY,
IT MERELY CONTROLS THE METHODS USED.

The government would have us believe that iany attempt 
to observe the prior judicial approval requirement of the 
Fourth Amendment necessarily denies the authority of 
the Executive to defend the Constitution. We are told that 
the possibility of abuse is “not a valid basis for denying 
the Attorney General the authority” to use surveillance 
in defense of the national interest.56

However, no one has ever asserted that the Attorney 
General is without authority to conduct electronic surveil­
lances in defense of the society. The issue here is not whe­
ther he has such authority, hut whether he must observe 
certain, 'procedures in the exercise of that authority. Re­
spondents question not the end which the government 
seeks, but the means by which they seek it.

Mr. Justice Douglas put it well:57

“ The Almanac of liberty . . .  is filled with epi­
sodes where the means are outlawed, though the

56 Brief o f the United States, p. 35.

57 Wm. 0. Douglas, op. tit., at 178.



43

ends sought are worthy. The greatest battles for 
liberty indeed have been fought over the procedures 
which police and prosecutors may use.”

The Sixth Circuit Court of Appeals saw the point equally 
clearly when they wrote:58

“ [I]t  should be noted that the Fourth Amend­
ment’s judicial review requirements do not prohibit 
the President from defending the existence of the 
state. Nor does the Fourth Amendment require 
that law enforcement officials be deprived of elec­
tronic surveillance. What the Fourth Amendment 
does is to establish the method they must follow.”

2. NOR CAN THE GOVERNMENT ARGUE THAT THE 
JUDICIARY IS INCAPABLE OF SUCH REVIEW.

The linchpin of the government’s argument against prior 
judicial approval of national security surveillance is the 
alleged inability of the judiciary to do the job :59

“ [NJational security surveillance cases, however, 
. . . generally [involve] a large number of detailed 
and complicated facts whose interrelation may not 
be obvious to one who does not have extensive 
background information, and the drawing of subtle 
inferences.”

It seems that because the judiciary will not have exten­
sive background information, and because courts lack the 
mental ability to draw subtle inferences, judicial review 
should not be required.

58 United States v. United States District Court, see Appendix to 
Respondent’s brief.

59 Brief of the United States, p. 25.



44

The obvious response is that courts handle detailed and 
complicated facts daily, and regularly make very subtle 
inferences. Any common-garden-variety anti-trust case in­
volves facts of staggering detail and complexity. Never­
theless, the government shows no reluctance to bring anti­
trust litigation before the courts. As for the judiciary’s 
ability to draw subtle inferences, it is presumptive in the 
extreme for the government to tell this 'Court, or other 
judicial officers, that they lack the necessary intelligence.

Nor is it possible to respond that the inferences in the 
national security area are qualitatively different. Just last 
June the government eagerly brought before the courts 
(what they regarded) as a very grave issue of national 
security, New York Times Co. v. United States, 40$ UjS. 
713, 29 L. ed. 2d 822 (1971). The facts were complex, the 
inferences subtle. Nevertheless, the government did not 
hesitate. Indeed, the federal courts have traditionally had 
no trouble handling the most difficult and sensitive national 
security cases, whether they arise from the seizure of steel 
mills in war-time or from nuclear blasts under Amchitka.

I f there were really any doubt about the ability of the 
federal bench to understand these matters, it would be an 
easy matter to direct the requests to some judicial officer 
who has the necessary experience and intelligence. Many a 
distinguished federal judge has served as a prosecutor, 
attorney general, or in some other law enforcement capa­
city. Moreover, if permission ,to eavesdrop is denied by 
some “ dull” magistrate, nothing prevents the government 
from adding a small piece of information to their case 
and reapplying before some other judicial offeer.60 * * *

60 It is interesting to note a curious omission in the government’s
presentation. If judges lack ability as the government argues, there
must be instances where the government has been refused permission.
Yet they cite no instances where magistrates have refused even Om- 
.nibus Crime Control Act warrants.



45

In reality the government’s argument goes as follows: 
“ In these cases there is never a reasonable basis on which 
an independent judicial officer can base his permission. 
Therefore, an independent judicial officer lacks the ability 
to do his job. Therefore, he ought not be allowed to pass 
on these surveillances.” But this would prove too much. 
A  law enforcement officer can always argue that the rea­
son there is no basis to approve .the surveillance is that 
the magistrate is too stupid and the facts too complicated. 
Bather than erase the Fourth Amendment, the government 
adds: “ And national security is a special case.” However, 
they have not given this Court any particular reasons to 
believe this ipse dixit. Nor have they explained why all 
national security cases are beyond the ken of judicial offi­
cers. Surely there must be a straight-forward national 
security case occasionally.61 One suspects the government 
of engaging in .a “ definitional stop.”62 That is, national se­
curity cases are special because the government defines 
national security cases as special. There all discussion 
must end.

B. Adherence to the Disclosure Requirements of Alder- 
man.

In Alderman v. United States, 394 U.S. 165 !(1969), Mr. 
Justice White made it clear that in camera review for 
“ arguable” relevance was an insufficient safeguard of 
Fourth Amendment rights.63 I f  an indiivdual is to have

61 Indeed, the national security oases .on which the government re­
lies in their brief seem to have been handled adequately. Else why 
would the government rely on them?

62 See H. L. A. Hart, CONCEPT OF LAW (Oxford ed., 1961).

63 Disclosure was required “even though attended by potential dan­
ger to the reputation of safety of third parties or to the national secu­
rity,” 394 U. S. at 181.



46

any realistic chance of discovering whether or not the gov­
ernment has conducted illegal eavesdropping, he must see 
the record of surveillance. The trial court is in no position 
to do the job.

First, the court is never in a position to “place the tran­
script . . .  of the surveillance alongside the record evidence 
and compare the two for textual or substantive similari­
ties,”  394 UjS. at 182. As suppression hearings occur be­
fore the main trial, the record evidence will always be lim­
ited.

Second, the court will not know what to look for. As 
Mr. Justice White puts it, 394 U. S. at 182:

“  [A] good deal more is involved. An apparently 
innocent phrase, a chance remark, a reference to 
what appears to be a neutral person or event, the 
identity of a caller or the individual on the other 
end of a telephone, or even the manner of speaking 
or using words may have special significance to one 
who knows the more intimate facts of an accused’s 
life. And yet that information may be wholly color­
less and devoid of meaning to one less well ac­
quainted with all relevant circumstances. Unavoid­
ably, this is a matter of judgment, but in our view 
the task is too complex, and the margin for error 
too great, to rely wholly on the in camera judgment 
of the trial court to identify those records which 
might have contributed to the Government’s case.”

At this point Justice White drops a very interesting foot­
note, 394 U.S. 183 n. 14:

“ In both the volume of the material to be exam­
ined and the complexity and difficulty of the judg­
ments involved, cases involving electronic surveil­
lance will probably differ markedly from those si­
tuations in the criminal law where in camera pro-



47

eedures have been found acceptable to some ex­
tent.”

This Court, then, carefully distinguished cases involving 
complex facts and difficult judgments from cases where 
in camera examination is acceptable. He goes on to quote 
Dennis v. United States, 384 U.S. 855, 874-5', (1966), a case 
involving communists in labor unions, for the proposition 
that, 394 U. S, 183 n. 14:

“ ‘ [tjrial judges ought not be burdened with the 
task or the responsibility of examining sometimes 
voluminous . . . testimony,’ and . . .  it is not “ real­
istic to .assume that a trial court’s judgment as to 
the utility of material for impeachment or other 
legitimate purposes, however conscientiously made, 
would exhaust the possibilities.”

Here, o,n the government’s own showing, 64 the case “ in­
volves a large number of detailed and complicated” facts. 
Moreover, the inferences that must be made are ‘ subtle.”65 
This being the case it is impossible to expect even the most 
conscientious judge, by himself, to see all the possible 
wiays in which something might be “ arguably relevant.”  
Again, on the government’s own showing,66 the trial court 
“ does not have the extensive background information” 
necessary. Thus, he is especially likely to pass over some 
“ colorless” bit of information which will have special and 
vital significance to the defendant. In short, the very fac­
tors upon which the government relies to argue for an ex­
ception from judicial review before surveillance militate

64 Brief of the United States, p. 25.

65 ibid.

66 ibid.



48

for complete disclosure to the defendant after surveil­
lance. 67 * * *

Nor is it sensible to argue that Mr. Justice White meant, 
in the interests of administrative convenience, to relieve 
lower courts of the burden of sifting a voluminous record. 
The point, rather, is that the danger of an inadequate job 
being done by an individual trial judge is substantial, by 
far tao substantial to meet Fourth Amendment require­
ments. Even if the concern were administrative conven­
ience, the answer is to disclose to the defendant. Let him 
do all the work of sifting through volumes of records, 
rather ‘than the court. Alderman makes no sense if read as 
an exercise of this Court’s supervisory powers.

IV .

PALMER RAID PERIOD PROVIDES A CLEAR EXAMPLE OF 
HISTORY THE GOVERMENT WOULD DOOM US TO RE­
PEAT.

Once before in this century the Attorney General has, 
in the name of protecting the national security against 
domestic subversives, laid claim to an area within which 
his “administrative” procedures would be exempt from the 
Bill of Bights. In the years from 1917 to 1921 the govern­
ment accomplished the concerted, deliberate destruction

67 For a government to withhold the whole truth is never wise. 
“ When the truth is buried underground, it grows, it chokes, it gathers
such an explosive force that on the day when it hursts out, it blows 
everything up with it. We shall soon see whether we have laid the 
mines for a most far-reaching disaster o f the near future.” Emile
Zola, “J’acoiise! . . .  ” , reprinted in THE LAW AS LITERATURE
(Simon and Schuster ed., 1966) at 237.



49

of the I. W. W.,68 69 the first real industrial labor union. This 
was done in the name of administrative control of “ alien” 
radicals. It culminated with the Red Raids conducted by 
Attorney General A. Mitchell Palmer in 1919-1920. These 
raids involved such flagrantly lawless and massive inva­
sions of individual rights that a distinguished group of 
lawyers (including Felix Frankfurter and Roscoe Pound) 
denounced the Attorney General in these outraged terms :G!1

“ Under the guise of a campaign for the suppres­
sion of radical activities, the office of the Attorney 
General, acting by its local agents throughout the 
country, and giving express instructions from 
Washington has committed continual illegal acts. 
Wholesale arrests of both aliens and citizens have 
been made without warrant or any process of law; 
men and women have been jailed and held incom- 
mumcakko without access of friends or counsel; 
homes have been entered without search-warrant 
and property seized and removed; other property 
has been wantonly destroyed; workingmen and 
working women suspected of radical views have 
been shamefully abused and maltreated. Agents of 
the Department of Justice have been introduced in­
to radical organizations for the purpose of inform­
ing upon their members or inciting them to activi­
ties; these agents have even been instructed from 
Washington to arrange meetings upon certain dates 
for the express object of facilitating wholesale 
raids and arrests.

68 International Workers o f the World, or “ Wobblies.”

69 R. G. Brown, Zechariah Chafee, Jr., Felix Frankfurter, Ernst 
Freund, Swinburne Hale, Francis Fisher Kane, Alfred S. Niles, Ros­
coe Pound, Jackson H. Ralston, David Wallerstein, Frank P. Walsh, 
Tyrell Williams, “ To the American People—Report upon tire Illegal 
Practices of the United States Department o f Justice,” (NY: Ameri­
can Civil Liberties Union, 1920).



50

A . In Relevant Respects, the Factual and Legal Claims 
M ade by the Government in that Period are Strike 
ingly Parallel to Those Made Here.

The history of the Palmer Raid period70 presents an 
instructive and striking parallel to this case. Some twenty- 
six years before the Palmer Raids, the United States Su­
preme Court decided Fong-Yue-Ting v. United States, 140 
U. S'. 698 (1893). They held that deportation was merely 
an administrative process for the return of unwelcome and 
undesirable alients to their own countries, not a punish­
ment for crime. A  few years later the Court decided Yama- 
taya v. Fisher, 189 U.:S. 86 '(1903), the famous Japanese 
immigration case. The Court held that the Executive 
branch had sole and final authority to determine an alien’s 
right to remain in this country, provided the alien was 
not “ arbitrarily” deported, i.e. was allowed an adminis­
trative hearing. The court would not consider the fairness 
of the hearing, 189 U.S. at 100:

“ It is true that she pleads a want of knowledge 
o f our language; that she did not understand the 
nature and the import of the questions propounded 
to her; that the investigation made was a ‘ pre­
tended’ one; and that she did not, at the time, know 
that the investigation had reference to her being 
deported from the country. These considerations 
cannot justify the intervention of the courts.”

It was enough that the alien, unable to understand or speak 
English, might have brought the matter to the attention 
of the immigration officials, ibid:

to The following' discussion is based on Prof. Wm. Preston, Jr., 
ALIENS AND DISSENTERS: FEDERAL SUPPRESSION OF RAD­
ICALS, 1903-1933 (1963), a publication of the Harvard University 
Center for the Study of the History of Liberty in America.



51

“ They could have been presented to the officer 
having primary control of such a case, as well as 
upon an appeal to the Secretary of the Treasury, 
who had power to order another investigation if 
that course was demanded by law or by the ends of 
justice.”

As long as there was a hearing, the Court could perceive 
no ground for judicial “ intervention, . . . none for the con­
tention that due process of law was denied,” 189 U.S. at 
102. See also, Pearson v. Williams, 202 U.S. 281 (1906). 
Little did the Court suspect that by 1919 the Executive 
branch would be using these decisions as the justification 
for mass arrests, general searches, and incommunicado in­
terrogations of anyone deemed dangerous and undesirable. 
As it turned out, what the Court had done was, in effect, 
to do what the government is asking this Court to do in 
the instant case—create an area, exempt from the Bill of 
Bights, within which the Executive branches’ treatment of 
individual liberties will be secure from any scrutiny but 
its own.

Abuses developed slowly. In 1908 a thorough search re­
vealed no deportable anarchist aliens. In the eight year 
period before the Palmer Baids only fourteen aliens were 
deported for radical beliefs.71 From 1909 to 1912 a deter­
mined effort was made to silence the I.W.W. and their 
anti-capitalist rhetoric. It failed miserably. With the Bill 
of Bights supporting the Wobblies, there seemed to be no 
legal way to silence them. As one old farmer was reported 
to have complained, “ You can’t kill ’em; the law protects 
’em.”72 In 1912 under pressure from the solid citizens of

71 ibid., p .  33.

72 ibid., P‘. 43.



52

Southern California, President Taft pronounced the 
I.W.W. “ lawless flotsam and jetsam,” and promised “ to 
tahe decided action.” 73 However, a scrupulously careful 
examination by the Department of Justice failed to reveal 
sufficient evidence to sustain a criminal indictment. Be­
cause the Attorney General had yet to discover the use­
fulness of deportation as an anti-radical weapon, he re­
gretfully concluded that there was no way to “ show the 
strong hand of the United States,” as Taft desired.74

Again in 1915, another federal investigation revealed 
no grounds for federal action.75 As a general matter, be­
fore World War I the suppression of labor organizers was 
thus left to the States and to the vigilantes.

However, the threats of World War I changed matters. 
In the face of a rising nativist feeling, Congress aban­
doned the conviction that radicalism could be a home­
grown phenomenon.7® Shutting its eyes to the evidence of 
shocking industrial conditions Congress keyed its solution 
of domestic unrest to the mistaken theory that described 
current radicalism as a foreign import of the new immi­
gration.77 * * Then, as now, the tendency was to insinuate that 
domestic dissidents are “ interrelated” with foreign ene-

73 ibid., p. 53.

74 ibid., p. 54.

75 ibid., p. 60.

76 ibid., pp. 75, 83.
77 ibid., p. 76. Evidence indicates that most workers joined the

I.W.W. to make effective protest, rather than in support for their radi­
cal aims, ibid. p. 97.



53

mies, and then bootstrap to the conclusion that the Bill 
of Bights no longer applied.78

In 1917 Congress overrode President Wilson’s second veto 
and passed a vague new immigration law, 39 ILS. Stat. 
889:

“ Any alien who at any time after entry shall be 
found advocating or teaching the unlawful destruc­
tion of property, or advocating or teaching anarchy 
or the otherthrow by force or violence of the Gov­
ernment of the United States or of all forms of law 
or the assassination of public officials . . . shall, upon 
the warrant of the Secretary of Labor, be taken into 
custody and deported.”

The Congress that passed this statute and amended it in 
1918, like the Congress that passed the Omnibus Crime Act, 
was impatient with the procedures of the Courts. Congress­
men did not want to determine the rights of anarchists and

78 ibid, pp. 76, 91, 100. During World War I the insinuations be­
came less subtle. 'Consider the following headlines from the period: 
“ Kaiser’s Coin Pays for I. W. W. Sabotage,” San Francisco Chronicle, 
Feb. 22, 1918, p. 1, col 3; “ Bolsheviki Ship Brings Gold to Aid 
I. W. W.,” San Francisco Chronicle, Dec. 24, 1917, p. 1, col. 8; “ Bol­
sheviki and I. W. W.’s Planned U. S. Revolution,” Indianapolis News, 
Feb, 21, 1919, p. 3, col. 1. Generally see Eldridge R. Dowell, A HIS­
TORY OF CRIMINAL SYNDICALISM LEGISLATION IN THE 
UNITED STATES (DaCapo edition, 1969), pp. 34-44; and at p. 36,, 
“at is interesting to note that no case of an I. W. W. saboteur caught 
practicing sabotage or convicted o f its practice is available.”

This country has a long tradition of explaining dissent, unionism, 
and radicalism as the product of “ foreign” influences. E.g., in People 
<v.. Fisher, 14 Wend. 9 (N.Y. 1835) a group of tailors were indicted for 
conspiring to injure trade and commerce. Judge Edwards lectured them 
as follows: “ Every American knows, or ought to know, that he has no 
better friend than the laws, ,and that he needs no artificial combina­
tion [i.e., union] for his protection . . . They are of foreign origin, 
and I am led to believe are mainly upheld by foreigners . . . ”  (empha­
sis added).



54

other radicals “ by the long slow process of courts.” As 
one representative said, “ A  long-delayed snail-paced” trial 
would only encourage radicals “ to ply their trade instead 
of making an example of them.”79 80 Nor was Congress con­
cerned that the “ alien” involved may have resided in the 
United States for years.50 As Prof. Preston summarizes 
the official feeling at the time: “ If repression was the aim, 
then a non-criminal, administrative procedure was far more 
efficient [than the courts], and gave . . . officials great 
latitude in defining guilt.”81

Before applying the 1917 Act, however, Secretary of 
Labor Wilson ordered a full-scale investigation of the 
I.W.W.’s literature and organic documents. This examina­
tion revealed “ no lawless purpose,” as did a similar in­
vestigation in 1918.82 The Secretary ordered that his in­
spectors thoroughly substantiate personal guilt before re­
questing a warrant of arrest. Warrants would issue, the 
Secretary ordered, only after an exhaustive inquiry into 
the alien’s beliefs, teachings, and actions. Indeed, the Sec­
retary insisted on a standard of 'personal guilt as exacting 
as that in judicial proceedings.83 Even before Sec. Wil­
son’s action, the immigration officials had decently stiff

79 ibid., p. 83,
80 ibid., p. 83. Consider the comments of Rep. Slayden of Texas:

“ Now I would execute these anarchists if I could, and then I 
would deport them, so that the .soil o f our country might not be 
polluted by their presence even after the breath had gone out of 
their bodies. I do not care what the time limit is. I want to get 
rid o f them by some route . . .  or by execution by the hangman. 
It makes no difference to me so that we get rid of them.”

81 ibid.

82 ibid., pp. 101, 189.

83 ibid., p. 102.



55

formal standards to follow. Under the Departmental rnles, 
e.g. an arrest warrant was only issued when an inspector 
had made out a prima facie case, and accompanied the 
application by “ some substantial supporting evidence.” 
Telegraphic application for a warrant was only permitted 
“ in case of necessity” or “ when some substantial interest 
of the government would thereby be served.84 Thus, ini­
tially the Secretary was cautious about his interpreta­
tions. As in the instant case, an effort was made to create 
and impose an administrative substitute for probable cause.

However, these administrative safeguards died young. 
By March 1918 the commissioner general was of the opin­
ion that Congress:85:

“ [a] Iso intended to reach the passive and insid­
ious forms [of radical activity] . . .  as the only as­
suredly effective means of curing the active form s; 
in other words intended ,to reach the word as well 
as the deed, and in some respects, to reach the un­
derlying thought as well.”

Because of pressure from the lower echelons,86 the stan­
dard rapidly went from personal guilt to “ evil thoughts” 
or membership in a group known for their subversive 
ideas, to the joy of state prosecutors and employers.87 The 
Supreme Court’s decisions were interpreted to give the 
Executive authority to deport aliens on the grounds of 
expediency, whenever their presence was “ deemed inoon-

84 ibid., p. 14.

85 ibid., p. 84.

86 ibid., p. 102.

87 ibid., p. 100: “ Prosecuting attorneys and employers also looked 
upon deportation as the most flexible and discretionary weapon avail­
able for their attack upon radical labor agitators. Proof of individual 
,guilt was the great stumbling block in labor disturbances.”



56

sistent with the public welfare.88 What standards remained 
at the Cabinet level never were applied in practice. The 
subordinates were trained in law enforcement. They had 
difficulty making fine theoretical distinctions, much less 
applying them.89

Thus, when a man said he was opposed to capitalism, they 
took him to be an anarchist. In practice the standards for 
arrest and deportation in I. W. W. cases became about as 
loose as any the immigration bureau inspectors could de­
vise:80 e.g., having the appearance and attitude” of an 
I. W. W., even though not a member; sympathetic associa­
tion with anarchists, the I. W. W. or similar groups; “ liv­
ing off summer’s earnings” (a characteristic typical of 
harvest and lumber workers in the off-season); “an abnor­
mal head which indicates criminal propensities;” a “ pre­
dilection for agitation;” or a tendency to “ spread radical 
propaganda.’ Nor could formal pronouncements by the 
Secretary of Labor restrain the abuse :91

“ In theory, the wayward Bureau of Immigration 
was only carrying out the desires and decisions of 
the Secretary of Labor. It had no independent pol­
icy-making authority. In practice, the bureau had 
captured control of deportation, ignored the inter­
pretation of Secretary Wilson and turned the su­
perior department officials into submissive rubber 
stamps.”

Despite the best intentions o f the Secretary, the privileged 
area created by the Court in 1893 had become a monster 
by 1920.

88 ibid., p . 1 1 .

89 ibid., p .  188.
90 ibid., p p .  178-9.

91 ib id . ,  p .  2 2 2 .



57

In the government’s enthusiasm to stamp out the I.W.W. 
they resorted to a number of tactics. In September 1917 
Bureau of Investigation agents simultaneously raided 
I. W. W. headquarters, locals, and residences throughout 
the nation in an effort to get enough information for crim­
inal charges.92 After the leaders o f the I.W.W. were in­
dicted and under trial for criminal conspiracy, the govern­
ment conducted a concerted program to cut off funds for 
the defense effort. The Postmaster General banned I.W.W. 
literature from the mails.93 The ban included not only 
requests for contributions to the defense of the Chicago 
prisoners, but even the blank contribution forms them­
selves.94

The tactics also included the general search. Anxious 
to find any mail that might contain contributions, one in­
spector’s search warrant contained the following particu­
lar description: “ 5,000 envelopes bearing U.S. stamps 
and indicating proper payment of postage thereon.”95 Of­
ficers were authorized to seize material not covered by 
such warrants if the letters in question “ appear . . .  to b e ' 
part of the general scheme and propaganda of the 
I. W. W .” 96 Such searches and seizures are so general as 
to approach those effected by modern electronic surveil­
lance. Of course, President Wilson’s administration justi­
fied these searches as mere administrative procedures,

92 ibid., ip. 118.

83 ibid., p. 146.

94 ibid. Even the I. W . W. resolution against sabotage was prohi­
bited because it contained the word “ sabotage.” Certain literature was 
found to have “ disloyalty unexpressed,”  or a “somewhat more audible 
undertone of disloyalty,”  p. 147.

95 ibid., p. 148.

96 ibid.



58

pursuant to the Executive’s power to deport subversive 
aliens.

Ultimately the arrests began, under the supervision of 
a young man by name name of J. Edgar Hoover, then 
head of the Justice Department’s old General Intelligence 
Division. Incommunicado interrogations were favored. The 
government could thereby convict a man out of his own 
mouth, without the unfortunate necessity of exposing 
their undercover informers. Indeed, much of the illegal 
and abusive treatment given the prisoners may be traced 
to the official decision to protect undercover informers.97 
Thus, Mr. Hoover opposed counsel being present at the 
interrogation, for with counsel present the prisoner would 
not incriminate himself. The government then would be 
forced to blow their counter-espionage agents’ cover at 
the very start of a promising career.

Again, in borderline cases where deportation seemed 
debatable, the government would resort to information 
from undercover informants. Since confidential informa­
tion would not appear in the record, the alien would have 
no way of answering it. Prof. Preston summarizes: “ Weak, 
technical cases were to become substantial, deportable ones 
on the secret word of undercover informants. With their 
reliability unquestioned, and their statements unchal­
lenged, these agents would become the real arbiters of the 
immigration laws.”98 Similarly, in the instant case, the 
government seeks to keep secret the testimony of an under­
cover electronic informant. Without disclosure there can 
be no way to judge the legality and worth of the surveil­
lance. Again, the government seeks to be the sole arbiter 
o f the Bill of Bights.

^  ib id . ,  p. 2 2 1 . 

98 ib id . ,  p. 2 1 4 .



59

It is said of the young Mr. Hoover that he “did not 
think of [the] program as either autocratic or outrageous. 
[H ]e simply carried traditional immigration practices to 
a logical conclusion and . . . expected good results.”99 We 
respectfully submit that democracy in the United States 
cannot afford another round of such “good results.”

C O N C LU SIO N

Wherefore, the judgment of the Court of Appeals should 
be affirmed.

Respectfully submitted,

'Stephen I. Schlossberg 
General Counsel

M. Jay Whitman
Assistant General Counsel 

International Union,
United Automobile, 
Aerospace and Agricultural 
Implement Workers of 
o f America (UAW)

8000 East Jefferson 
Detroit, Michigan 48214 
Tel: (313) 926-5216

Dated: December 10, 1971

" i b i d . ,  p. 2 2 0 .



DEC 16 ,
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