UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
June 21, 1973
UNITED STATES OF AMERICA
JOHN WILLIAM BUTENKO AND IGOR A. IVANOV, IGOR A. IVANOV, APPELLANT
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before SEITZ, Chief Judge, and ALDISERT and ADAMS, Circuit Judges
Opinion OF THE COURT
ALDISERT, Circuit Judge.
This appeal from a new final conviction for violation of a national security statute presents questions relating to the use in a criminal prosecution of electronic eavesdropping interceptions made in 1963. The case has a long and interesting history.
Appellant Igor Ivanov, a Soviet national, was charged with having conspired with one John Butenko, an American, to violate the federal espionage statute, 18 U.S.C. § 794(a) and (c)*fn1 (Count I), from April to October in 1963, and with having conspired to violate the statutory prohibition against acting as an agent of a foreign government without prior notification to the Secretary of State, 18 U.S.C. § 951*fn2 (Count II). Following a jury verdict of guilty, appellant Ivanov was sentenced to twenty years' imprisonment on Count I and five years' imprisonment on Count II, the sentences to run concurrently. This court affirmed the judgment of conviction against him on Count I and directed his acquittal on Count II. United States v. Butenko, 384 F.2d 554 (3d Cir. 1967). Appellant then filed petitions for certiorari in the United States Supreme Court. While the cases were there pending, the Solicitor General revealed that the United States had engaged in certain electronic surveillances and that Butenko and Ivanov had been overheard. The Supreme Court ordered a remand to the district court for "a hearing, findings, and conclusions (1) on the question of whether with respect to any petitioner there was electronic surveillance which violated his Fourth Amendment rights, and (2) if there was such surveillance with respect to any petitioner, on the nature and relevance to his conviction of any conversations which may have been overheard through that surveillance."*fn3 Alderman v. United States, 394 U.S. 165, 186-187 (1969).
On remand, the government conceded that one set of interceptions was illegal but convinced the district court that these did not taint the conviction. The district court found a second set of interceptions to have been properly authorized by virtue of the President's prerogative to obtain foreign intelligence information, denied appellant's application for disclosure, denied an evidentiary hearing pertaining thereto, and entered a new judgment of conviction. United States v. Ivanov, 342 F. Supp. 928 (D.N.J. 1972). This appeal followed.
The precise nature of the espionage conspiracy was a scheme to transmit to the Union of Soviet Socialist Republics the plan of a command and control system of the Strategic Air Command (SAC). Given the name "465-L," the system was being produced by International Electronic Company, a subsidiary of International Telephone and Telegraph, and was an automatic electronic system which enabled the commander of SAC to alert and deploy his forces and provide him with an up to the minute status of the total force. Additional details on the nature of this project are summarized in our earlier opinion. 384 F.2d at 557. We found that "there was substantial evidence to buttress the conviction" of Butenko, then employed as a control administrator at the International Electronic Company, and that "sufficient evidence was offered by the Government to show [Ivanov's] intricate involvement with the conspiracy." 384 F.2d at 563.
At trial the government proved that on October 29, 1963, appellant was observed in Englewood, New Jersey, with two other Soviet Nationals, Pavlov and Romashin, in the vicinity of the Englewood railroad station parking lot. An automobile "driven by Butenko, drove into the railroad station lot, parked, turned off the headlights and turned on the parking lights and within a few minutes the Soviet automobile, now driven by Pavlov with Ivanov in the right front seat, came into the parking lot, signaled by turning off headlights and turning on parking lights. Here, there was a direct confrontation between Ivanov and Butenko and several minutes later, when the defendants were arrested, the briefcase of Butenko was found in the Soviet automobile." 384 F.2d at 563-564.
Two sets of logs reflecting electronic surveillances were introduced at the remand hearing and form the backdrop of this appeal. The first set covered the periods from May 15, 1963, to June 11, 1963, and from June 27, 1963, to August 13, 1963, and were designated as "4001-S" and "4002-S." These logs were disclosed to appellant. The government conceded that these logs represented illegal surveillances but contended that their use did not taint the conviction. The district court agreed. A second set of logs was not shown to appellant or his counsel but was examined by the court in camera. The government represented that these logs reflected intercepted conversations of Ivanov, duly obtained by the Department of Justice in the exercise of the President's right to obtain foreign intelligence information. These sealed documents, government exhibits A-1, A-2, and A-3, were accompanied by an affidavit of Attorney General John N. Mitchell setting forth the circumstances of, and authority for, the surveillance. The court ruled that this second set of logs was lawfully obtained under the theory set forth by the Attorney General and refused Ivanov the opportunity of examining them or an evidentiary hearing relating thereto.
Appellant mounts separate arguments relating to each set of logs. He contends that the first set of logs was incomplete and, therefore, the court erred in its ruling that the use of these illegal surveillances did not taint the conviction. Secondly, he argues that the use of the surveillance evidence from the second set of logs was illegal, contravening Section 605 of the Communications Act of 1934,*fn4 or, alternatively, that use of this evidence by the prosecution violated Fourth Amendment protections guaranteed him as an alien. See Au Yi Lau v. United States Immigration & Naturalization Service, 445 F.2d 217, 223 (D.C. Cir.), cert. denied, 404 U.S. 864 (1971), stating that aliens in this country, like citizens, are protected by the Fourth Amendment. See generally Kwong Hai Chew v. Colding, 344 U.S. 590, 596-597 (1953).
Some factual background to the first set of logs is necessary. The actual tapes were not available; only logs reflecting a summary of their contents were presented. Government witnesses testified that it was standard practice to erase tapes which were not productive of meaningful evidence or leads, and because these surveillances were unproductive, the taped interceptions were not preserved. The court found as a fact: "Rarely did intelligible adult conversations come through, and no clear conversation of Ivanov was received over the equipment." 342 F. Supp. at 933. Using the test of United States v. Delerme, 457 F.2d 156 (3d Cir. 1972), we believe there is substantial evidence to support this finding.*fn5
Typical of the testimony adduced at the hearing was that of Agent McWilliams who supervised the wiretapping. The district court reported: "McWilliams admitted that the electronic surveillance of Ivanov conducted under his supervision produced no evidence that would have warranted Ivanov's arrest for engaging in any unlawful activity." Id. Agents McWilliams, Martin, Conway and Manning testified that no use was made of the results of those surveillances and no reports were furnished pertaining to their contents. The Assistant United States Attorney who prosecuted the case and the two Department of Justice agents who assisted him testified that they were unaware of any electronic surveillance.
Indeed, the district court observed throughout its opinion:
The evidence adduced at the hearing conclusively shows that Ivanov's conviction was not in any way tainted by reason of the unlawful electronic surveillances conducted by the Government.
342 F. Supp. at 931.
There is no question in the Court's mind, based on personal knowledge of the trial, and a careful review of the evidence adduced at the taint hearing, that the arrest and subsequent conviction of Ivanov resulted from the Government's independent investigation of the case, in which electronic surveillances 4001-S and 4002-S played no part.
342 F. Supp. at 936.
The electronic surveillances in this case were ineffective and unsuccessful. What they produced was, at best, innocuous, even when viewed by the specially trained and experienced FBI Agents. An examination of the logs, reflecting summaries of the surveillance tapes, reveals nothing more than a history of small talk and unintelligible chatter of such obvious insignificance that the FBI discontinued its electronic surveillance of Ivanov on June 18, 1963, because of its demonstrated consistent showing of non-productivity.
342 F. Supp. at 937.
The Court finds no specific evidence of taint in this case. Even assuming, arguendo, that some such evidence existed, the Court is satisfied beyond a reasonable doubt that in this case the Government has met its ultimate burden of showing that no substantial or measurable portion of the evidence used against Ivanov at his trial was tainted.
342 F. Supp. at 939.
Finally, Ivanov mounts a somewhat technical argument relating to the May 26 and May 27 surveillances. The government contended that the logs for these dates were before the district court. Appellant claimed that these were not the logs for May 26 and May 27, but rather, the logs for May 21 and May 22. The opinion of the court admits the date is unclear, and states concerning one log, it "could be either May 21 or May 26," and concerning the other, "the date appearing on C-6-2 could be read as either May 22, or May 27, 1963." 342 F. Supp. at 940.
From this appellant argues that the logs for May 26 and May 27 were destroyed or lost, and that these logs contained exclupatory or contradictory evidence. Additionally, appellant continues, if the logs for May 26 and May 27 are missing, there exists a possibility that evidence admitted at trial was the product of leads obtained from, and therefore tainted by, the illegal May 26 and May 27 surveillances; that is, because these logs were not before the court, there could be no finding that any of the government evidence was derived from legitimate independent sources.
As the district court's opinion demonstrates, these conclusions do not follow. One log was compiled for each day. There were ten days in May in the twenties - May 20 through May 29. There were ten logs for this period. "While there may be some question as to which log is which, the Court is satisfied that all logs covering the period May 20, through May 29, 1963, were in Court and in the possession of Ivanov's counsel, and further that no logs covering the period in question were missing, lost or destroyed." 342 F. Supp. 940. This is a finding of fact by the district court and we will not disturb it. United States v. Delerme, supra.
Moreover, our own independent scrutiny of these logs permits us to be more specific in our findings concerning these exhibits. Preliminarily, we observe that this court may examine documents and exhibits which were before the district court and make our own independent determinations concerning them. See, e.g., Shiya v. National Committee of Gibran, 381 F.2d 602 (2d Cir. 1967), cert. denied, 389 U.S. 1048 (1968).
There is no dispute concerning the dating of the 4001-S logs. This set presents ten log sheets, one for each day from May 20 through May 29, 1963, all clearly dated. Also, there is only one log sheet for each day for each of the two surveillances. Because the log sheets for both surveillances were maintained by one agent, an entry on either log for the same date bears the same agent's initials. Of course, different agents were on duty at different times and on different dates.
With these facts as a basis, an examination of exhibits C-6-1 and C-6-2 reveals that appellant is correct in asserting that these two log sheets are for May 21 and May 22, respectively. Appellant introduced before the district court a full-page advertisement by NBC News in the May 21, 1963 issue of the New York Times, announcing that the documentary film "The Kremlin" would be shown on Channel 4 from 9:30 to 10:30 that night. A log entry on exhibit C-6-1 shows that a television program entitled "The Kremlin" was overheard by electronic surveillance at 9:55 p.m. on the date of the log. Also, appellant introduced a New York Times television schedule for May 26, 1963, showing that "The Kremlin" was not scheduled for viewing at any time on that date. Moreover, a comparison of the agent's initials on exhibits C-6-1 and C-6-2, the log sheets in controversy, with the initials on the 4001-S log sheets for May 21 and May 22, reveals that the initials and entries are identical. However, when compared with the agents' initials and entries on the 4001-S log sheets for May 26 and May 27, there is no similarity. It is clear that exhibits C-6-1 and C-6-2 are log sheets for May 21 and May 22, 1963, respectively.
From this, however, it does not follow that the 4002-S surveillance log sheets for May 26 and May 27 have been lost or destroyed. On the contrary, examination of exhibits C-8-1 and C-8-2 reveals that these sheets are the logs of surveillance 4002-S for May 26 and May 27, respectively. First, an examination of exhibit C-8-1, ostensibly dated "5/21/63", reveals that the date on the log sheet previously read "5/26/63". The "6" was cresed at some point and replaced with a "1", yet the "6" remains clearly visible underneath. Secondly, a comparison of the agents' entries and initials on exhibit C-8-1 with the 4001-S log for May 26, discloses that they are identical. Thus, exhibit C-8-1 is the log sheet of surveillance 4002-S for May 26, 1963.
Examination of exhibit C-8-2 reveals a similar change. This would appear to be the log sheet for "5/22/63". Upon closer examination, however, a "tail" can be seen to have been added to what was originally the "7" in "27" so as to make it a "2". Following this alteration, what was "5/27/63", became "5/22/63". Secondly, comparison of exhibit C-8-2 with the 4001-S log sheet for May 27 yields a complete identity of the agents' entries and initials. Yet, when exhibits C-8-1 and C-8-2 are compared with the 4001-S log sheets for May 21 and May 22, there is no similarity.
We have no basis for ascribing a sinister motive to the erasures and alterations.
Thus, we conclude (1) that exhibits C-6-1 and C-6-2 are the log sheets of surveillance 4002-S for May 21 and May 22, respectively, and (2) that exhibits C-8-1 and C-8-2 are the log sheets of surveillance 4002-S for May 26 and May 27, respectively.
Our findings in no way conflict with those of the district court. Rather, these findings make specific that which the district court left general, and, as such, make them more definite and sustainable.
We conclude, therefore, that as to the first set of logs the district court discharged its responsibility properly under the Supreme Court's mandate. Confronted with a government concession that these surveillances were illegal, it had but one responsibility: to determine whether "the conviction of [the] petitioner was not tainted by the use of evidence so obtained." The district court found no such taint from the first set of logs and we find no error in this determination.
The second set of logs forms the background of the major issue in this appeal: whether the government could properly utilize in a criminal prosecution the product of an electronic surveillance obtained in 1963 solely on the strength of the Attorney General's position as the representative of the President in gathering foreign intelligence information.
At the outset, it is important to emphasize what is not before us. We are not interpreting Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, June 19, 1968, 82 Stat. 112, 18 U.S.C. § 2510 et seq. Both the government and appellant agree that the governing statute at the time of these interceptions was the Communications Act of 1934, 48 Stat. 1143; 47 U.S.C. § 605. Therefore, we are not called upon to consider the applicability of 18 U.S.C. § 2511(3).*fn6 Thus, we do not meet the issue reserved in United States v. United States District Court, 407 U.S. 297, 308 (1972): "Further, the instant case requires no judgment on the scope of the President's surveillance power [under Title III of the 1968 Act] with respect to the activities of foreign powers, within or without this country." Indeed, we are not required to define the parameters of the President's surveillance power under § 605. The limited nature of our inquiry is simply this: assuming a constitutional power of the President to have ordered surveillance of foreign agents in 1963, was it permissible for the government, under § 605 of the Communications Act of 1934, to utilize the products of such surveillance in a criminal prosecution?
That we so frame the question indicates that we avoid the invitation to plunge into an evaluation of Fourth Amendment considerations. We are mindful of Justice White's admonition "to [stop and] inquire whether the challenged interception was illegal under the statute" rather than proceed "directly to the constitutional issue without adverting to the time-honored rule that courts should abjure constitutional issues except where necessary to decision of the case before them. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-348 (1936) (concurring opinion)." United States v. United States District Court, supra, 407 U.S. at 340 (concurring opinion).
For our purposes we must accept the hypothesis suggested by appellant that "it must be assumed that the conversations of Ivanov overheard on the wiretaps led to evidence used at his criminal trial." For the issue of taint could not be resolved against Ivanov without an evidentiary hearing. Alderman v. United States, and Ivanov v. United States, supra, 394 U.S. 165; Kolod v. United States, 390 U.S. 136 (1968). Thus, we must assume "in the present posture of this case," as we did in In Re Grand Jury Proceedings, Appeal of Sister Egan, 450 F.2d 199 (3d Cir. 1971), and as the Supreme Court did in Gelbard v. United States, and United States v. Egan, 408 U.S. 41 (1972), that the government intercepted communications and utilized them in the proceedings against the appellant.
We are not without guidance in approaching this issue. The Supreme Court has ruled forcefully, specifically and in clear language free from any ambiguity, that § 605 was a complete and total bar to the admissibility of wiretap information obtained by federal agents in a smuggling prosecution. Interpreting the statutory language, "... no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person," the Court said:
Taken at face value the phrase "no person" comprehends federal agents, and the ban on communication to "any person" bars testimony to the content of an intercepted message.
Nardone v. United States, 302 U.S. 379, 381 (1937).
In the second Nardone case, 308 U.S. 338 (1939), the Court held that the statutory prohibition barred the evidentiary use of the fruits of the intercepted conversations, as well as the conversations themselves. The Supreme Court continued the absolutism of its pronouncements in review of a conviction for unlawful possession of alcoholic spirits in Benanti v. United States, 355 U.S. 96, 100 (1957):
The Nardone decision laid down the underlying premises upon which is based all subsequent consideration of Section 605. The crux of those decisions is that the plain words of the statute created a prohibition against any persons violating the integrity of a system of telephonic communication and that evidence obtained in violation of this prohibition may not be used to secure a federal conviction. ( Emphasis supplied.)
It is the government's contention that the President, acting through the Attorney General, may constitutionally authorize the use of electronic surveillance to obtain foreign intelligence information deemed essential to the security of the United States.*fn7 The government properly observes that Article II vests the President, as Chief Executive, with responsibility for the conduct of the nation's foreign affairs.
The district court accepted this contention, and solely for the purpose of our analysis, we shall assume that the district court did not err in this respect. However, accepting this contention does not put the matter to rest. The issue central to this case is not the constitutional power of the President to conduct such surveillances, but it is the less sophisticated question of admissibility of evidence in a criminal prosecution.
A review of the authorities relied upon by the government indicates that these cases failed to make the important distinction between the congressional power to forbid the disclosure of interceptions and the President's constitutional power to make interceptions.
It is beyond question that the President, as Chief Executive, possesses certain powers and responsibilities which are not dependent upon a specific legislative grant from Congress, but derive from the Constitution itself.*fn8 This principle was announced as early as Marbury v. Madison, 1 Cranch (5 U.S.) 137, 165-166 (1803):
By the Constitution of the United States the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.
United States v. Belmont, 301 U.S. 324, 328 (1937), held that "the conduct of foreign relations was committed by the Constitution to the political departments of the government, and the propriety of what may be done in the exercise of this power [is] not subject to judicial inquiry or decision."*fn9
It is also beyond cavil that Congress has the power to regulate the reception of evidence in federal courts. This was recently demonstrated when the President signed S.583 under which the Rules of Evidence for United States Magistrates, amendments to the federal rules of civil and criminal procedure promulgated by the Supreme Court on November 20, 1972, will have no force or effect "except to the extent... as they may be expressly approved by Act of Congress." In Sablowsky v. United States, 101 F.2d 183, 189 (3d Cir. 1938), we said that Nardone "holds clearly that Section 605 creates a rule of evidence relating to the admission of intercepted wire communications sought to be divulged by officers of the United States in courts of the United States. No other interpretation can be placed upon this phase of the Nardone decision."
It remains only for us to determine whether it is consistent to assume that the President has the right to intercept and at the same time hold that the contents of the interception may not be divulged as evidence in a criminal prosecution. To resolve this we must turn to the language of the statute.
For our purposes the critical clause of § 605 is that which provides: "no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person." (Emphasis supplied.) We emphasize that the Act states that no person shall "intercept any communication and divulge or publish." The conjunction "and" mandates the conclusion that two circumstances must occur for the bar of the statute to take effect: first, the interception, and, second, the divulging or publishing of the intercepted information "to any person." Thus, the Supreme Court has not construed this Act to make wiretapping an offense in all instances. Rather, it is the interception and disclosure of the contents of the message which constitute the crime. "Both acts are essential to complete the offense." United States v. Coplon, 91 F. Supp. 867, 871 (D.D.C. 1950), reversed on other grounds, 191 F.2d 749 (D.C. Cir. 1951).
Under the theory of the presidential prerogative to gather foreign intelligence information, it is never contended that the President himself or his authorized Cabinet officer, performs the act of interception. This is done by special "agents" of a given department of the Executive Branch. Indeed, against the backdrop of the sophisticated interrelationships of a sprawling administrative bureaucracy, as required by the complexities of modern government, thousands of personnel within the Executive Branch are often considered as representatives of the person of the President. Therefore, it is entirely consistent with the language of the statute to find the Executive Branch of the government is "a person" who may properly intercept under the constitutional right of the Chief Executive, so long as the contents of the interception are not divulged or published "to any person" outside of that Executive Branch. Therefore, the President may have the constitutional power to intercept and to use the intercepted information within the Executive Branch without violating § 605. Thus construed, the Act would be violated only when the contents of the interception have been divulged or published "to any person" outside the Executive Branch.
A similar view of the statute was shared by the Department of Justice. Former Attorney General Herbert Brownell, Jr., observed that after passage of the 1934 Act, "[the] question soon arose as to whether mere interception by federal agents of messages was forbidden by Section 605. The Attorney General at that time took the view that what the law prohibited was both interception and divulgence, and that mere report of the intercepted message to public officials by FBI or other federal agents did not constitute divulgence.... None of the decisions [Nardone] rendered by the Supreme Court held that wire tapping by federal officers in and of itself was illegal, absent divulgence." Brownell, "Public Security and Wire Tapping," 39 CORNELL L. Q. 195, 197, 198 (1954).*fn10
"[The] President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world." Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., supra, 333 U.S. 103, 111 (1948). The growing complexity and sophistication of modern society have led to the recognition that sophisticated techniques are required for gathering intelligence information where national security is involved. As early as 1876, the Supreme Court recognized the presidential power to conduct intelligence operations in order to protect the security of the nation. Totten v. United States, 92 U.S. 105 (1876). In 1940, President Roosevelt, in a confidential memorandum to Attorney General Robert H. Jackson recognized the necessity of wiretapping in matters "involving the defense of the Nation." President Truman expressly approved this practice as have all Attorneys General since 1940.
When Secretary of State William P. Rogers was Deputy Attorney General he wrote a perceptive article which completely supports our analysis that there is a basic distinction under § 605 between the right to intercept and the right to use interceptions as evidence. Rogers, "The Case for Wire Tapping," 63 YALE L. J. 792 (1954): "It has long been the position of the Department of Justice that mere interception of telephone communications is not prohibited by federal law." 63 YALE L. J. at 793. Mr. Rogers outlined the long struggle of Attorneys General to persuade Congress to enact legislation to permit the introduction into evidence of intercepted communications in criminal prosecutions. "Attorney General J. Howard McGrath submitted wire tap legislation for introduction in the 82d Congress. In doing so, he repeated [a plea of former] Attorney General Clark and indicated that such legislation would enable the prosecution of present, future, and past violations of laws endangering our internal security, not barred by the statute of limitations, which would otherwise go unpunished to the detriment of the Nation.'" 63 YALE L. J. at 795.
Mr. Rogers states that Attorney General McGrath reaffirmed the inability of his department to fulfill "its statutory duty of prosecuting," and that Attorney General Herbert Brownell complained to Congress that without wiretap legislation "the hands of prosecuting officers are tied and their efforts to maintain the security of the Nation are thwarted."*fn11 "Again, on November 17, 1953. Attorney General Brownell advised a congressional committee that the work of the Department of Justice has clearly shown the need for legislation which would permit the use of wire tap evidence in espionage cases. He advised that there are cases of espionage presently in the Department of Justice but that since some of the important evidence was obtained by wire tapping, such cases could not be brought to trial so long as the law remains in the present state." 63 YALE L. J. at 796. (Emphasis supplied.) Significantly, the "law" explicitly referred to by Mr. Rogers and Attorney General Brownell was the instruction contained in the Nardone cases, as amplified by Weiss v. United States, 308 U.S. 321 (1939), applying the doctrine to intrastate as well as interstate communications. 62 YALE L. J. 793 nn.5, 6, and 7.
The efforts of the various Attorneys General came to fruition with the passage of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, supra. Unlike § 605, the present wiretap statute, 18 U.S.C. § 2511(3), note 6, supra, contains a provision providing for the evidentiary use of intercepted communications: "The contents of any wire or oral communication intercepted by authority of the President in the exercise of... [his constitutional] powers may be received in evidence in any trial hearing...."*fn12
We are persuaded, therefore, that the district court erred in equating an assumed presidential power to intercept with the right to "divulge or publish" that which was intercepted. We hold that assuming a constitutional prerogative of the Chief Executive to intercept, the doctrine of Nardone prevents, under strictures of § 605, divulging or publishing the contents of the interception. In this context any use of the intercepted material beyond the confines of the Executive Branch would have been contrary to the statutory prohibition, thus entitling appellant to disclosure or an evidentiary hearing pertaining thereto. We will remand these proceedings to the district court for reconsideration in accordance with the foregoing analysis.
On the present state of the record we agree with the government's contention that additional overhearings of Ivanov's conversations following his conviction were not within the mandate for disclosure of "electronic surveillance which might have violated defendants Fourth Amendment rights and tainted their convictions."
The judgment of the district court will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Adams, Circuit Judge, concurring and dissenting.
It is well settled that when a defendant's conversations are illegally intercepted, the government is required to disclose its surveillance logs to the accused and a hearing must be held to determine whether the illegal wiretap contributed to the conviction.*fn1 Such hearing and disclosure are mandated, however, only if the court determines that the electronic surveillance was illegal.*fn2
The present appeal involves the district court's handling of two sets of logs. The government conceded that the first set of logs represented illegal wiretaps and, after full disclosure to the appellants, the district court concluded that their use did not contribute to the conviction. The second set of logs, which, according to the government, reflected legally intercepted conversations of the appellant obtained by the Department of Justice in the exercise of the President's right to acquire foreign intelligence information, was examined by the district court in camera.*fn2a Holding that the government's gathering and use of these logs did not violate section 605 of the Communications Act of 1934 or the fourth amendment, the district court denied appellant the opportunity to examine the second set of logs and a hearing on the taint issue.
I agree with this Court's holding that the district court committed no error in finding that the first set of logs did not taint appellant's conviction. At the same time, however, I disagree with the majority's interpretation of section 605 of the Communications Act of 1934 and its decision to remand the case to the district court. In my view, the wiretaps represented by the second set of logs did not violate either section 605 or the fourth amendment and, therefore, the district court correctly concluded that disclosure and a hearing were not required. I would therefore affirm the district court's judgment in toto.
I. Legality Under Section 605 of the Communications Act of 1934.
Section 605 of the Communications Act of 1934 provides in relevant part that "no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person."*fn3
Under the majority's interpretation of section 605, the President and those acting on his behalf may, assuming they have the right to intercept telephone conversations at all,*fn4 use such intercepted material only "within the confines of the Executive Branch." Thus, in the majority's view, any use of "the products of such surveillance in a criminal prosecution," and thus outside the Executive Branch, would be illegal.
To reach this result, the majority opinion treats all members of the Executive Branch as one "person" for purposes of section 605 and thus concludes, in effect, that when one Executive Branch member who has intercepted a communication relates the contents of that material to another Executive Branch member, he is not a "person... [intercepting] any communications and [divulging]... the contents... of such communication to any person." Under this reasoning, the Attorney-General, for example, would be permitted to relate the contents of a wiretap to the F.B.I., the C.I.A., or a cabinet officer but not to a court, a jury, a state policeman, or a member of Congress, since the latter recipients of the message are separate "persons" within the meaning of section 605, while the former recipients are not.
There is, in my view, very little basis or support for such an interpretation of section 605.*fn5 Neither the plain words of the statute, the legislative history, nor subsequent case law indicates that, in passing the Communications Act of 1934, Congress intended to prohibit the President, or those acting on his behalf, from intercepting telephone communications and making use of the obtained material in cases involving the gathering of foreign intelligence information.
The Senate and House reports pertaining to the Communications Act suggest that the purpose of the statute was to create a communications commission with regulatory power over all forms of electrical communication, whether by telephone, telegraph, cable, or radio. In addition, the Act extended to wire communications the almost identical provisions of section 27 of the Radio Act of 1927, which was thought neither to apply to federal officers nor to bar testimony as to the contents of radio messages intercepted by them.*fn6 The debate on the Federal Communications Act made no mention of section 605. Not one word was said about making material obtained by electronic surveillance inadmissible in evidence or about prohibiting wiretapping generally.*fn7
In fact, the only time Congress has specifically addressed its attention either to the President's power to gather information in the field of foreign affairs or to section 605 of the Communications Act of 1934 was in section 2511(3) of Title III of the Omnibus Crime Control and Safe Streets Act of 1968:*fn8
"Nothing contained in this chapter or in section 605 of the Communications Act of 1934... shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation..., to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities.... The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial, hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power."
While Congress has recognized, at least with the passage of the Omnibus Crime Control and Safe Streets Act of 1968, that section 605 does not prohibit, in the foreign intelligence gathering context, the interception of communications and the use in court of material thereby obtained, little can be gleaned from court opinions to suggest what the judicial response to that interpretation of section 605 would have been.
In Nardone v. United States,*fn9 petitioners were tried and convicted of smuggling alcohol. Over their objection, federal agents were permitted to testify to the substance of petitioners' telephone conversations that were wiretapped and overheard by the witnesses. The Supreme Court held that, under section 605 of the Communications Act of 1934, "'no person' comprehends federal agents, and the ban on communication to 'any person' bars testimony to the content of an intercepted message."*fn10 Despite the government's argument that "a construction be given the section which would exclude federal agents since it is improbable Congress intended to hamper and impede... the detection and punishment of crime," the Court concluded "that the question is one of policy."*fn11 The Court thus recognized that questions regarding the applicability and scope of section 605 may properly be answered only in terms of the intent of Congress in passing the legislation and the policy sought to be achieved thereby.
But while Congress may not have intended to exclude from the operation of section 605 federal agents attempting to obtain evidence against a suspect in a run-of-the-mill domestic criminal case, Nardone does not speak to cases concerning the gathering of foreign intelligence information and specifically by those whom the President has authorized to do so. In addition, the present case, unlike Nardone, involved not federal agents qua agents, but federal agents as surrogates of the President himself. And in this case, unlike Nardone, the surveillance covered by the second set of logs was aimed not at securing evidence to convict a particular person, but at gathering foreign intelligence information deemed essential to the security of the United States.
The question for decision here, then, is not whether Congress has the power to forbid disclosure of interceptions in federal courts, but, assuming it has such power, whether in enacting section 605 Congress intended to exercise that authority in cases involving the President's power to intercept in the foreign intelligence field. A determination that Congress intended to exclude from evidence wiretap information obtained by federal agents in domestic cases such as Nardone does not therefore necessarily require the same result in cases of the present kind. In fact, every court that has specifically addressed the issue whether section 605 prohibits the President from gathering foreign intelligence information or from using the obtained material has answered in the negative.*fn12
In United States v. Stone,*fn13 for example, Judge Gasch concluded:
"This Court finds that telephonic surveillances conducted solely for purposes of gathering foreign intelligence information... are not proscribed by Section 605. There is no indication in the legislative history of the Act that Congress intended to prohibit wiretaps by the Attorney General for these purposes. Nardone v. United States, supra, reflects a similar unawareness of the problem and its accompanying consideration of the need to gather intelligence information and the need to keep those activities secret. It is apparent that the Nardone Court, in preferring to allow 'some offenders' to go 'unwhipped of justice' rather than to permit the government to resort to methods destructive of personal liberty was not speaking to the considerations involved in the very different question of permitting the accumulation of foreign intelligence information by telephonic wiretap.
"Since Section 605 does not apply, it follows that the exclusionary rule of Nardone and Benanti v. United States, 355 U.S. 96... (1957), formulated to 'compel respect for the federal law,' is equally inapplicable."*fn14
Of course, United States v. Coplon*fn15 is one case that may be read to undercut the position urged here, but there the court never addressed the question of the wiretaps' legality. Instead, the court merely assumed that the surveillance itself was illegal under section 605. "It is of course well-settled law that 'wiretapping' is forbidden by statute...."*fn16 In the years since Coplon, however, it has become clear, as the majority opinion states,*fn17 that wiretapping alone is not illegal under section 605.*fn18
I would follow the reasoning of those courts holding that section 605 does not prohibit the President from either engaging in foreign intelligence surveillance or using materials obtained thereby in federal trials. In view of the importance and breadth of the President's authority in the foreign affairs context,*fn19 section 605 should be viewed as limiting that power only if it can reasonably be said that Congress has expressly manifested a clear intention to do so. And since such expression is absent here, I would hold that an intention on the part of Congress to supersede the President's power is also lacking.
II. Legality Under the Fourth Amendment
Because of my conclusion that section 605 of the Communications Act of 1934 neither prohibits the President from gathering foreign intelligence information nor limits the use to which material so obtained may be put, it becomes necessary to determine whether the wiretaps in this case violated the fourth amendment. If the wiretaps were unconstitutional, then disclosure of the logs and a suppression hearing would be mandated under the rules enunicated by the Supreme Court.*fn20
The fourth amendment bans not all searches and seizures but only those that are "unreasonable.*fn21 Whether a given search or seizure is unreasonable depends, at least to some extent, upon the specific requirements of the warrant clause.*fn22 That clause seeks to insure that invasions of privacy generally be justified by the judgment of a "neutral and detached magistrate" who has first determined that there is "probable cause." There are, of course, exceptions to the warrant requirement.*fn23
Although it has never decided whether a warrantless wiretap authorized by the Attorney General for the purpose of gathering foreign intelligence information violates the fourth amendment, the Supreme Court recently had occasion, in United States v. United States District Court,*fn24 to consider the validity of warrantless electronic surveillance in the domestic security context.
In that case, the defendants moved the district court to compel the government to disclose wiretap information and to conduct a hearing concerning the issue of taint. The United States acknowledged that it had overheard conversations of the defendants but stated "that the Attorney General approved the wiretaps 'to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.'"*fn25 After in camera inspection of the sealed logs, the district court held that the electronic surveillance violated the fourth amendment and ordered the government to make full disclosure. Both the Court of Appeals for the Sixth Circuit*fn26 and the Supreme Court agreed.
The Supreme Court's opinion specifically states:
"Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers within or without this country. (Emphasis supplied.) The Attorney General's affidavit in this case states that the surveillances were 'deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government.' (Emphasis by Supreme Court). There is no evidence of any involvement directly or indirectly, of a foreign power."*fn27
Referring to the question for decision as "a narrow one," the Supreme Court proceeded to inquire into the "reasonableness" of the particular surveillance:
"As the Fourth Amendment is not absolute in its terms, our task is to examine and balance the basic values at stake in this case: the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression. If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant requirement would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it."*fn28
The Court concluded that while there may be some exceptions to the fourth amendment warrant requirement sufficient special circumstances do not exist to justify "complete exemption of domestic security surveillance from prior judicial scrutiny."*fn29
The present appeal raises the question left open by the Supreme Court in United States v. United States District Court, namely whether "warrantless surveillance, though impermissible in domestic security cases, may be constitutional where foreign powers are involved."*fn30 In resolving this issue, the analysis must now turn to a consideration of (1) the source and scope of the President's power to engage in the gathering of foreign intelligence information, and (2) the extent to which, if any, the fourth amendment places restraints upon the exercise of such Presidential power.
Few, if any, would doubt that the President has the authority to gather foreign intelligence information.*fn31 His duties include, inter alia, the responsibility as Chief Executive to administer the Nation's foreign affairs;*fn32 and the obligation as Commander-in-Chief of the Armed Forces to safeguard the Nation's security from foreign aggression.*fn33 To fulfill these awesome responsibilities, the President must exercise an informed judgment, and to exercise such judgment, the President must have the authority to use the investigative resources at his disposal to insure the availability of all necessary information. In an increasingly complex world the efficient and effective gathering of foreign intelligence information has necessitated the use of sophisticated electronic surveillance techniques, a development that has been approved by Presidents and Attorneys General since 1940.*fn34
The Supreme Court has recognized that the President's powers in foreign affairs matters are broad and indeed independent of congressional authorization. In United States v. Curtiss-Wright Corp.,*fn35 a landmark case implicating the President's foreign affairs powers, the Supreme Court stated in the course of elucidating "the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs":
"The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers is categorically true only in respect of our internal affairs.
"Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.
"[He], not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results."*fn36
Moreover, in determining the scope of the President's powers in cases of the present kind, it should be noted that we are dealing with the ability of this country to preserve its very existence. The right of a nation to engage in self-defense is perhaps its most basic assertion of independence and sovereignty. As Justice Frankfurter once said with respect to this national power of self-defense:
"There come occasions in law, as elsewhere, when the familiar needs to be recalled. Our whole history proves even more decisively than the course of decisions in this Court that the United States has the powers inseparable from a sovereign nation. 'America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent. The right of a government to maintain its existence - self-preservation - is the most pervasive aspect of sovereignty. 'Security against foreign danger,' wrote Madison, 'is one of the primitve objects of civil society.' The constitutional power to act upon this basic principle has been recognized by this Court at different periods and under diverse circumstances. 'To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated.
It matters not in what form such aggression and encroachment come.... The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth...."*fn37
That the President may wiretap in the field of foreign affairs, however, does not by itself suggest that in the exercise of that power, the President is not constrained by fourth amendment considerations. Put simply, the relevant question becomes, must there be a showing of probable cause and prior judicial approval before those acting on the President's behalf may constitutionally engage in electronic surveillance for the purpose of gathering foreign intelligence information.
It is, of course, basic that rights enumerated in the Constitution are not absolute. Rather, in many cases they have to be weighed against other competing constitutional provisions.*fn38 The Supreme Court has noted, for example, that the fourth amendment "is ruled by fluid concepts of 'reasonableness.'"*fn39 In my judgment, when the competing factors present in this case are examined, the balance between the President's power to gather foreign intelligence information and an individual's right to be free of such investigation must be struck in favor of the reasonableness of the President's action.
The Constitution vests in the President, not the judiciary, the responsibility for conducting the Nation's foreign affairs and safeguarding its security. To require the judiciary to pass in advance upon the propriety of proposed electronic surveillance in a given case might in effect make the judicial branch of our government the supreme arbiter of the scope of the Executive's power properly to perform one of his important constitutional duties. As the Supreme Court has so concisely put it:
"The conduct of foreign relations was committed by the Constitution to the political departments of the government, and the propriety of what may be done in the exercise of this power [is] not subject to judicial inquiry or decision...."*fn40
A warrant requirement would seem to suggest that at least in some cases judicial permission to engage in foreign intelligence gathering would be denied. Such a denial could very well result in the President's not being able to obtain essential information so as to exercise an informed judgment as to matters of the most weighty national concern. Whereas our society may be willing to pay as a price for its privacy the freeing of a criminal in a domestic case when the government has not obtained a warrant to search, in the foreign intelligence setting, where the stakes are infinitely higher, an inability to obtain needed information may well result in a miscalculation in the President's dealings with foreign nations, a failure to respond to a foreign threat of aggression, or perhaps, as in the present case, not preventing secret and crucial defense information from falling into the hands of potential foreign adversaries.
I would thus conclude that the President need not obtain judicial approval before conducting foreign intelligence surveillance.*fn41
There is, of course, nothing novel about carving out careful and discrete exceptions to the warrant requirement. For years the courts have done just that in cases where circumstances of sufficient importance exist. For example, the Supreme Court has permitted warrantless searches: (1) of vehicles believed to contain contraband, lest the vehicle be quickly moved to a different locality before a warrant can be obtained;*fn42 (2) as incident to a lawful arrest, because the arrestee might attempt to use a weapon or destroy incriminating evidence in his possession;*fn43 (3) when officers are in "hot pursuit" of a suspect;*fn44 (4) in "stop and frisk" cases, where a police officer has detained a person for questioning and believes that the person may be armed and dangerous;*fn45 (5) in situations involving a warrantless "home visit" by a welfare worker;*fn46 and most recently (6) where, although an arrest has not been effected, the authorities believe that highly destructible evidence is on a suspect's person and have probable cause to arrest.*fn47
Indeed, this Court just had occasion to review the constitutionality of a warrantless search in United States v. Slocum.*fn48 There, the Court upheld a warrantless search of airline passengers accomplished by a magnetometer:
"'[The] danger [incident to air piracies] is so well known, the governmental interest so overwhelming and the invasion of privacy so minimal, that the warrant requirement is excused by exigent national circumstances.... '[The] Constitution does not forbid searches and seizures: it forbids only those that are unreasonable.' Indeed, the underlying purpose of the warrant requirement announced by the 4th Amendment is 'to guarantee that [the] decision to search... is justified by a reasonable governmental interest.' Reasonableness is the ultimate standard."*fn49
These exceptions to the warrant requirement are thought to rest upon various bases: exigent circumstances; emergency situations; protection of life; significant government interests. Although there are admittedly factual differences between the cited cases and the present one,*fn50 the President's power to conduct foreign affairs electronic surveillance should be accorded similar treatment. Such wiretaps promote an exceedingly important governmental interest, and may well protect the very life of the nation.*fn51
This is not to say, however, that the fourth amendment has no part to play on the foreign intelligence stage. "There is, understandably, a deep-seated uneasiness and apprehension that this capability will be used to intrude upon cherished privacy of law-abiding citizens."*fn52 But that role must of necessity, in view of the exigencies present in foreign affairs matters, be limited.*fn53
While, in my view, the President and those acting on his behalf are not required to seek judicial approval before conducting foreign surveillance, they should be required to demonstrate the "reasonableness" of such surveillance before being permitted to use in a court of law the contents or fruits of the interception. And the test of "reasonableness" in such cases should be the relationship between the search and the President's foreign affairs power. Before the contents or fruits may be used in a judicial proceeding, the government should have to demonstrate to the satisfaction of the trial judge in camera that the electronic surveillance was, in fact, related to the Chief Executive's foreign affairs authority. Once such a showing has been made, a conclusion that the wiretap was "reasonable," and thus constitutional, would be appropriate. On the other hand, should the government fail to demonstrate satisfactorily a relationship between the surveillance and the President's foreign affairs power, the court would properly find that the tap was illegal and order full disclosure to the defendant for a hearing upon the taint issue.
Although such a rule may appear to be novel, it finds its roots in the traditional treatment accorded prior restraints under the first amendment. Because of our precious first amendment freedoms, the courts will permit to be punished action they will not permit to be stopped. The analogy to the present case is that just as a speaker, though perhaps violating the law, ought to be allowed to deliver his message, so should the President, though perhaps acting in a way which hindsight will show to be unreasonable, be permitted to gather the information he deems so essential to the proper performance of his constitutional duties. But when hindsight does, in fact, demonstrate the illegality of the speaker's action or the unreasonableness of the President's surveillance, let the courts then respond accordingly. If it is found that the speech was illegal or the surveillance unreasonable, let the speaker be punished or the wiretap be suppressed, as the case may be. In this way, a balance can be struck between two competing sets of values - in the speaker's case, the free exchange of ideas and society's interest in punishing wrongdoers, in the President's case, the need to obtain foreign intelligence information and society's interest in securing its privacy.
Because the district court examined the logs in camera and specifically found that "the surveillances were conducted solely for the purpose of gathering foreign intelligence information,"*fn54 the government has satisfied its burden as set forth in this opinion, and I would therefore affirm the judgment of the district court.
The present case raises issues concerning a clash of interests of the highest concern to the vitality of this nation. As is typical under our system of government, the conundrum implicit in the controversy has been brought to the judiciary for authoritative resolution. The appellant contends that the Communications Act should be construed to bar such surveillance and the use of material obtained thereby and that without prior judicial authorization the President and his counselors may not constitutionally intercept his telephone communications. The government asserts that the Communications Act should not be so construed, and with respect to the constitutional question, maintains that there is a presidential power to engage in warrantless surveillance to gather foreign intelligence information.
Principled adjudication of this knotty matter cannot properly be achieved by a doctrinaire preference for one interest or the other. Both executive authority in the foreign affairs area and society's interest in privacy are of significance, and are worthy of even-handed judicial concern within the legal arrangement of our federalism. Thus, far more is required here than a mere chivalrous defense of either presidential power or private rights.
Rarely, if ever, do the phrases of the Constitution themselves decide cases without at least some creative assistance from the judiciary. The Constitution speaks through the judges, but its phrases are seldom so cabined as to exclude all flexibility. Charged with the assignment to make a choice, a judge must be responsible for the choice he makes.
In cases of this nature, there sometimes occurs an incident of such transcendent import that appeals to the feelings and may even distort the judgment. These immediate interests exercise a kind of hydraulic pressure that makes what previously was clear now seem doubtful, and before which even well-established principles of law may bend. Although the intellectual climate of today may make it fashionable to oppose electronic surveillance for all times and for all purposes, it is important to keep in mind that our form of government was not created simply to be washed away by any new wave of the moment, like words etched on a sandy shore. The defendants in this case conspired to transmit to the Soviet Union one of this nation's most critical military secrets: the system enabling the Strategic Air Command to alert our Air Force bases and missile sites in the event of foreign aggression.
Frequently, the obvious must be rehearsed. The President of the United States is no less deserving of judicial hospitality than those desirous of protecting private rights. As Commander-in-Chief, the President must guard the country from foreign aggression, sabotage, and espionage. Obligated to conduct this nation's foreign affairs, he must be aware at all times of the posture of foreign nations toward the United States, the intelligence activities of foreign countries aimed at uncovering American secrets, and the policy positions of foreign states on a broad range of international issues.
Burdened with these manifold assignments, the President must be free to engage in electronic surveillance if such procedure is deemed necessary by him. To be sure, in the course of such wiretapping conversations of alien officials and agents, and perhaps American citizens, will be overheard and, to that extent, their privacy compromised. But the fourth amendment proscribes only "unreasonable" searches and seizures. And balanced against this country's self-defense needs, whatever crack in the wall of privacy is made must be countenanced.
The Pennsylvania Assembly wrote to Robert Morris in 1755: "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." I believe that this admonition is as true today as when it was uttered. But the "purchase" implicated in cases of the present kind is not "a little temporary Safety." It is the very security and life of this nation, the sine qua non without which "essential Liberty" could not flourish. Let those who would relinquish such security in the name of an absolutist concept of privacy realize that in so jeopardizing the very existence of the nation, they may well be undercutting the foundation that supports both the privacy and liberty they seek to protect.*fn55
THE WHITE HOUSE WASHINGTON
CONFIDENTIAL May 21, 1940
THE ATTORNEY GENERAL
I have agreed with the broad purpose of the Supreme Court decision relating to wire-tapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and is also right in its opinion that under ordinary and normal circumstances wiretapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.
However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation.
It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so-called "fifth columns" in other countries and in preparation for sabotage, as well as in actual sabotage.
It is too late to do anything about it after sabotage, assassinations and "fifth column" activities are completed.
You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens.
OFFICE OF THE ATTORNEY GENERAL WASHINGTON, D.C.
July 17, 1946
The President, The White House.
My dear Mr. President:
Under date of May 21, 1940, President Franklin D. Roosevelt, in a memorandum addressed to Attorney General Jackson stated:
"You are therefore authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigating agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies."
This directive was followed by Attorneys General Jackson and Biddle, and is being followed currently in this Department. I consider it appropriate, however, to bring the subject to your attention at this time.
It seems to me that in the present troubled period in international affairs, accompanied as it is by an increase in subversive activity here at home, it is as necessary as it was in 1940 to take the investigative measures referred to in President Roosevelt's memorandum. At the same time, the country is threatened by a very substantial increase in crime. While I am reluctant to suggest any use whatever of those special investigative measures in domestic cases, it seems to me imperative to use them in cases vitally affecting the domestic security, or where human life is in jeopardy.
As so modified, I believe the outstanding directive should be continued in force. If you concur in this policy, I should appreciate it if you would so indicate at the foot of this letter.
In my opinion, the measures proposed are within the authority of law, and I have in the files of the Department materials indicating to me that my two most recent predecessors as Attorney General would concur in this view.
(s) Tom C. Clark
I concur July 17, 1947
(s) Harry S. Truman
THE WHITE HOUSE
June 30, 1965
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
I am strongly opposed to the interception of telephone conversations as a general investigative technique. I recognize that mechanical and electronic devices may sometimes be essential in protecting our national security. Nevertheless, it is clear that indiscriminate use of those investigative devices to overhear telephone conversations, without the knowledge or consent of any of the persons involved, could result in serious abuses and invasions of privacy. In my view, the invasion of privacy of communications is a highly offensive practice which should be engaged in only where the national security is at stake. To avoid any misunderstanding on this subject in the Federal Government, I am establishing the following basis guidelines to be followed by all government agencies:
(1) No federal personnel is to intercept telephone conversations within the United States by any mechanical or electronic device, without the consent of one of the parties involved, (except in connection with investigations related to the national security).
(2) No interception shall be undertaken or continued without first obtaining the approval of the Attorney General.
(3) All federal agencies shall immediately conform their practices and procedures to the provisions of this order.
Utilization of mechancial or electronic devices to overhear non-telephone conversations is an even more difficult problem, which raises substantial and unresolved questions of Constitutional interpretation. I desire that each agency conducting such investigations consult with the Attorney General to ascertain whether the agency's practices are fully in accord with the law and with a decent regard for the rights of others.
Every agency head shall submit to the Attorney General within 30 days a complete inventory of all mechanical and electronic equipment and devices used for or capable of intercepting telephone conversations. In addition, such reports shall contain a list of any interceptions currently authorized and the reasons for them.
(s) Lyndon B. Johnson