The opinion of the court was delivered by: WEBER
Of the various grounds for suppression of wire tap interception evidence in this case the most concise and clear cut is that asserted by the defendants under 18 U.S.C. 2518(10)(a)(ii):
"(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; . . .".
A clear cut issue of law is presented to the court on the uncontradicted facts of this authorization. Applications to the court for the interception orders signed by the court on December 9, 1971 and December 23, 1971 recited:
"Pursuant to the powers conferred on him by Section 2516 of Title 18, United States Code, the Attorney General of the United States, the Honorable John N. Mitchell, has specially designated the Acting Assistant Attorney General for the Criminal Division of the United States Department of Justice, the Honorable Henry E. Petersen, to authorize affiant to make this application for an order authorizing the interception of wire communications. The letter of authorization signed by the Assistant Attorney General is attached to this application as Exhibit A."
There is no dispute between the parties that at the date of the letters of authorization dated December 8, 1971 and December 23, 1971 the said Henry E. Petersen was Acting Assistant Attorney General, and on the dates of subsequent letters of authorization, January 18, 1972, January 24, 1972 and February 7, 1972, the said Henry E. Petersen was an Assistant Attorney General, his nomination to that office having been confirmed by the Senate.
The Government concedes that the validity of the three interception authorizations issued subsequent to the two authorizations of December 8 and December 23, 1971 is dependent upon the validity of the first two intercepts. The subsequent authorizations and applications are identical in form and substance to the original authorizations with the exception that the signatory of the authorization letters is identified as Henry E. Petersen, Assistant Attorney General. However, the evidence obtained from the extensions of the orders of December 9, 1971 and December 24, 1971 is derivative evidence obtained as a result of the initial interceptions and is, therefore, subject to suppression if the authorization and order under which the communications were intercepted is insufficient on its face.
For the purpose of this motion we therefore confine our consideration to the question of whether or not an authorization to apply for an order of interception or an order of interception is insufficient on its face because the authorization was given by, and the order was granted upon an authorization made by an individual who was an Acting Assistant Attorney General rather than by the Attorney General or any "Assistant Attorney General specially designated by the Attorney General" as required by the provisions of 18 U.S.C. 2516(1).
We have withheld decision on these motions pending determination of United States v. Giordano, 4116 U.S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974); United States and Chavez et. al, 416 U.S. 562, 94 S. Ct. 1849, 40 L. Ed. 2d 380 . In Giordano the Court held that under the provisions of Section 2516(1) it was the intention of Congress to limit the power to authorize wire tap applications to the Attorney General himself or to any Assistant Attorney General he might designate and that this interpretation is strongly supported by the purpose of the Act effectively to prohibit all interceptions of oral and wire communications except those specifically provided for, as shown by the legislative history of the Act. In Giordano the application to the court recited that Assistant Attorney General Will Wilson had been specially designated by the Attorney General and there was attached to the application a letter from Assistant Attorney General Will Wilson, but it was determined in evidentiary hearings on suppression motions that Will Wilson was inaccurately described as the individual who had authorized the application, and in fact the application had not been approved by Assistant Attorney General Will Wilson but by an individual with the title of Executive Assistant to the Attorney General. The Court held that under the express provisions of Section 2516 the power of the Attorney General is specifically limited to designating his authority to "any Assistant Attorney General specially designated by the Attorney General", and that despite 28 U.S.C. 510 which authorizes a general delegation of the Attorney General's duties, such a statutory command must be followed. The Court recites the legislative history and concludes "the mature judgment of a particular, responsible Department of Justice official is interposed as a critical precondition to any judicial order." The Court noted the debates on prior versions of the Act which proposed a broader area of delegation by the Attorney General, and the rejection of those proposals to the effect that "the authority to approve applications be substantially narrowed so that the Attorney General could delegate his authority only to an Assistant Attorney General." The Court specifically noted the report of the Senate Judiciary Committee which stated that "(1) . . . centralizes in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques." S. Rep.No.1097, 90th Cong., 2nd Sess. 96-97 .
It is clear from the debates and the court cases which have considered this matter that a "publicly responsible official subject to the political process" means an officer who is appointed by the President subject to confirmation of the appointment by the Senate. The nine Assistant Attorney Generals are officers whose positions are created by statute which may only be occupied by persons nominated by the President and confirmed by the Senate. An "Acting Assistant Attorney General" is not such an officer. The Court held in Giordano that delegation to the Executive Assistant to the Attorney General was contrary to the statute.
The Court in Giordano considered the contention of the Government that Section 2518(10)(a)(i) required suppression for constitutional violations whereas sub-sections (ii) and (iii) were purely statutory requirements not affecting the legality of the authorization. The Court answered this argument by stating:
"We are confident that the provision for pre-application approval was intended to play a central role in the statutory scheme and that suppression must follow when it is shown that this statutory requirement has been ignored."
In the companion case of United States v. Chavez, decided the same date, the Court considered the question of mis-identification of the authorizing official. The authorization letter was held to be not "insufficient on its face" within the meaning of Section 2518(10)(a)(ii) since the order clearly identified "on its face", the Assistant Attorney General as the person authorizing the application, he being a person who under Section 2516(1) could properly give such approval if specially designated to do so as the order recited, notwithstanding that this was subsequently shown to be incorrect. We read Chavez as holding that the authorization is not insufficient if "on its face" it identifies an official who is statutorily empowered to act upon designation by the Attorney General regardless of the correctness of the identification of that official. Under such a circumstance the grounds for suppression must be asserted under sub-sections (i) or (iii) of Section 2518. We accept the converse of that rule as equally applicable that regardless of the legality of the approval in other respects not shown by the authorization or the order itself, the suppression must be ordered when the "insufficiency" mentioned by sub-section (ii) is apparent.
"Here, the interception order clearly identified 'on its face' Assistant Attorney General Wilson as the person who authorized the application to be made. Under 2516(1), he properly could give such approval had he been specially designated to do so by the Attorney General, as the order recited. That this has subsequently been ...