conversations were expected to be overheard were defendants or attorneys for defendants in a federal criminal case, and therefore no particular instructions were given the two FBI employees "to minimize the interception of communications not relevant to the alleged purposes for the interceptions." The plaintiff was overheard on three occasions.
A federal grand jury in Harrisburg, Pennsylvania began hearing evidence on December 13, 1970 regarding a plan to destroy underground utility tunnels in Washington, D.C. and to kidnap Dr. Henry Kissinger. In 1971 true bills were found in connection with two indictments, the prosecution of which became known as the trial of the Harrisburg Eight.
The Warrantless Electronic Surveillance In This Case Violated The Fourth Amendment.
Since 1967, when the United States Supreme Court handed down its decision in Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), there has been little doubt that, except for certain well-delineated exceptions,
a warrant was necessary for electronic surveillance of criminal activity unrelated to the national security interest. Furthermore, since 1972 when the Supreme Court decided United States v. United States District Court, 407 U.S. 297, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972), there has been little doubt that a warrant was also necessary in matters involving the national security interest, except for surveillances based on threats to the national security involving foreign powers.
It follows, therefore, that the warrantless electronic surveillance placed on the telephone of William Davidon in November 1970 was unconstitutional. The memorandum by which the Attorney General personally authorized this wiretap claimed that it was necessary to protect the national security interest in connection with the activities of a domestic organization. The Government made no claim that a foreign power was involved. Since District Court, there is no question that such a warrantless electronic surveillance is unconstitutional. In this civil action for damages, wherein the plaintiff claims that he was overheard on the warrantless wiretap, the issue presented is whether the plaintiff is entitled to recover monetary damages under either 18 U.S.C. §§ 2510-2520 or the Fourth Amendment.
District Court Should Not Be Given Nonretroactive Application.
The defendants take the position that no liability on plaintiff's Fourth Amendment claim should be imposed in this civil litigation because under Chevron Oil v. Huson, 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971), District Court should be given only prospective application.
In Chevron Oil, the United States Supreme Court set out the criteria for deciding when a decision should be given nonretroactive application in a civil case:
First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed . . .. Second, it has been stressed that "we must . .. weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Linkletter v. Walker, supra, at 629. Finally, we [must] weigh the inequity imposed by retroactive application, for "[where] a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the "injustice or hardship" by a holding of nonretroactivity." Cipriano v. City of Houma, 395 U.S. 701, 23 L. Ed. 2d 647, 89 S. Ct. 1897 (1969). Id. at 106-07.
As to whether District Court overruled a "clear past precedent," we find that prior to District Court, there was no clear rule of law which would have authorized the warrantless electronic surveillance in the instant case. Thus, District Court did not overrule any clear past precedent. Whether District Court decided "an issue of first impression whose resolution was not clearly foreshadowed" in November 1970 when the wiretap in this case was placed, presents a more difficult question. Prior to the decision in District Court in June 1972, several federal courts had been presented with the precise question decided in District Court, but they had reached divergent conclusions. On one hand, Judge Hoffman held in United States v. Dellinger, 69 CR 180 at 20 (N.D. Ill. Feb. 20, 1970):
because the matter of when electronic surveillance is reasonably necessary to investigations carried out to protect the national security is a matter not suitable for a judicial determination, but is rather best left to the authorization of the President or his chief legal officer, the Attorney General, I conclude that electronic surveillance in national security cases is not subject to the warrant requirements of the Fourth Amendment. (emphasis added).