516 F. 2d 594 - Zweibon v. N Mitchell

Over the past several years there has been increasing anxiety1 and increasing litigation2 concerning actions which the Executive Branch of our Government has undertaken under the rubric of "national security." Undoubtedly the President, our Chief Executive and Commander-in-Chief of our Armed Forces, is imbued by the Constitution with vast and indispensable powers for dealing with the vital problems generated by our relations with foreign powers, including the duty to protect this country from foreign aggression or subversion.3 The very existence of such tremendous power, however, renders it susceptible to abuse4 and endangers those fundamental personal liberties which the Government was instituted to secure for its citizens and whose exercise elevates the nation to a statute worthy of defense.5 Thus, although the attempt to claim Executive prerogatives or infringe liberty in the name of security and order may be motivated by the highest of ideals,6 the judiciary must remain vigilantly prepared to fulfill its own responsibility to channel Executive action within constitutional bounds.7 The present case embodies this problem in a particularly acute form, since we are faced with the delicate and difficult task of reconciling the President's asserted power to obtain foreign intelligence information through use of electronic surveillance with the citizen's cherished right to maintain his privacy and associations inviolate against unreasonable governmental intrusion. Moreover, we must determine whether Congress, in enacting Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1970), intended to affect this relationship by providing a remedy for illegal Executive surveillance.

* Plaintiffs-appellants, 16 individuals who were members of the Jewish Defense League (JDL) during the period covered by this action,8 sought damages from John Mitchell, then Attorney General of the United States, and nine special agents or employees of the Federal Bureau of Investigation9 for electronic surveillance overhearings of plaintiffs' telephone conversations which transpired during the month of October 1970 and from January 5 through June 30, 1971.10 The overhearings were alleged to violate plaintiffs' rights under both Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1970),11 and the Fourth Amendment.12

The instant action was filed shortly after pretrial proceedings in the consolidated criminal cases United States v. Bieber, No. 71-CR-479 (E.D.N.Y.), and United States v. Joffe, No. 71-CR-480 (E.D.N.Y.),13 revealed that the Justice Department had installed wiretaps on the telephones of JDL's New York headquarters without prior judicial approval, and had overheard conversations of certain defendants who were about to stand trial. At a subsequent hearing before Judge Weinstein,14 the Government prosecutor admitted that six telephone lines had been involved in the taps and that there were "volumes and volumes" of transcripts of intercepted communications.15 Plaintiffs-appellants herein allege that their conversations were illegally monitored16 by this surveillance during calls they made to or from, or calls they received on or from, those telephones.

Although defendants-appellees have since admitted that each of the named plaintiffs had in fact been overheard during conversations over the telephones in question, they claim that this surveillance did not abridge plaintiffs' statutory or constitutional rights.17 The primary ground for this position was explicated in an affidavit submitted by former Attorney General Mitchell, in which he stated:18

The surveillance of this telephone installation was authorized by the President of the United States, acting through the Attorney General in the exercise of his authority relating to the nation's foreign affairs and was deemed essential to protect this nation and its citizens against hostile acts of a foreign power and to obtain foreign intelligence information deemed essential to the security of the United States * * *.

Judge Pratt, on cross-motions for summary judgment in the District Court, sustained this assertion and granted defendants' motion, finding as a matter of fact that the Attorney General had authorized the wiretaps "after a determination was made by him that the activities of the JDL were obviously detrimental to the continued peaceful relations between the United States and the Soviet Union and threatened the President's ability and constitutional authority to conduct the foreign relations of this country," Zweibon v. Mitchell, D.D.C., 363 F.Supp. 936, 942 (1973), and holding as a matter of law that "(n)o prior authorization from a Court is necessary where, as in this case, electronic surveillances relate to the foreign aspects of our national security." Id. at 943.19 Judge Pratt then concluded that when there is a "clear threat to this country's foreign relations, it is the executive and not the judiciary, which should determine whether or not an electronic surveillance requires prior judicial authorization," id., and that the Attorney General's actions were "reasonable within the meaning of the Fourth Amendment and were therefore lawful." Id. at 944.

Judge Pratt's findings that these surveillances were motivated by foreign threats to the national security, and were a reasonable response in light of those threats, are premised on the actions and statements of JDL members and the reactions they provoked on the part of officials of the Soviet Union. Although the JDL was originally organized to achieve various domestic goals, its focus eventually shifted to the international arena, where it was primarily directed at opposing the Soviet government's restrictive emigration policies as they related to Soviet Jewry.20 In furtherance of these ends, JDL members21 engaged in a broad spectrum of activities directed against Soviet officials and installations in the United States. These activities ranged from purely peaceful demonstrations through acts of violence, including the bombing of Amtorg and Intourist-Aeroflot22 offices in New York City.23 Soviet officials vigorously and continuously protested these activities, for which they held the United States Government responsible. In the wake of these protests the Attorney General, fearing the possibility of international embarrassment or Soviet retaliation against American citizens living in Moscow, initially gave his approval to an FBI request for authorization to install wiretaps on JDL headquarters during the month of October 1970 on the occasion of the 25th session of the General Assembly of the United Nations.24

Although there was no evidence that this surveillance had achieved its purported aim of "provid(ing) advance knowledge of any activities of JDL causing international embarrassment to this country,"25 the Attorney General approved a second FBI request for authority to install a wiretap beginning in early January 1971. This second request for a wiretap on JDL headquarters, which was approved to last for a period of 90 days,26 was based solely on the fact that JDL demonstrations, many of which were "marked by violence," were targeted against Soviet installations in this country and were the subject of official Soviet protests.27 Once again the surveillance was "expected to provide advance knowledge of activities of the (JDL) directed against anti-Jewish diplomatic establishments, which could create situations of international embarrassment to the United States."28 This wiretap was extended for another 90-day period, based on the FBI's unsubstantiated assertion that "the authorized surveillance has continued to reveal details of plans by the * * * JDL to continue its program of harassment of Soviet and Arab bloc officials * * *. In each instance the (wiretap) installation furnished otherwise unobtainable information, well in advance of public statements by the JDL, thereby allowing for adequate countermeasures to be taken by appropriate police and security forces."29 Apparently despite any intelligence information so gathered, JDL activities continued in full force during the period of the surveillance; indeed, the surveillance failed to generate information that would have prevented the bombing of Amtorg offices on April 22, 1971, which was reportedly executed by JDL members.30 After 208 days, the wiretap installation was finally terminated, on June 30, 1971.31 During this period, neither Mr. Mitchell nor other officials of the Attorney General's office reviewed the information obtained from or the necessity for the taps,32 and Mr. Mitchell was unaware that the taps continued for more than a month after criminal indictments were handed down against several individuals (five of whom are plaintiffs in this case) whose conversations, including those with their attorney,33 were overhead in violation of Justice Department regulations.34

In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court held that a federal cause of action exists to remedy violations of the Fourth Amendment and that damages are recoverable upon proof that injuries resulted from the violation. There is still some doubt, however, as to whether all warrantless wiretapping constitutes such a violation. In 1967, the Supreme Court first ruled that warrantless electronic surveillance conducted through non-trespassory methods35 is an unreasonable search and seizure within the meaning of the Fourth Amendment. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). But in a footnote, see id. at 358 n.23, 88 S.Ct. at 515, the Court explicitly cautioned:

Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.

Although three Justices expressed their views on this subject in concurring opinions,36 the issue was not squarely presented37 to the Court until United States v. United States District Court (Keith ), 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), narrowed the scope of the possible exception to the warrant requirement.

In a carefully reasoned opinion, Mr. Justice Powell, writing for six members of the Court,38 held that no exception exists for surveillance justified solely on the basis of domestic threats to the national security. Despite the fact that the Court expressed no opinion as to the result that would be required if foreign powers were involved in the threat to the national security,39 some courts have subsequently held that such an exception to the warrant requirement in fact exists.40 We have serious doubts as to the methodology employed by those courts,41 and we therefore undertake to analyze the issues with which we are presented in a manner more faithful to the spirit and rationale of Keith. For although this case is a civil damage suit, it squarely poses the problem of the meaning and scope of the Keith decision and the validity and viability of any distinction between surveillance justified on the basis of foreign, as opposed to domestic, threats to the national security.

Although we believe that an analysis of the policies implicated by foreign security surveillance42 indicates that, absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional, our holding need not sweep that broadly. Instead, we hold today only that a warrant must be obtained before a wiretap is installed on a domestic organization that is neither the agent of nor acting in collaboration with a foreign power, even if the surveillance is installed under presidential directive43 in the name of foreign intelligence gathering for protection of the national security. We do not reach this conclusion lightly or without sensitivity to the import or the controversiality of the problem of national security wiretapping. But the Constitution compels us to do no less. In any event, our decision does not limit in any way the ability of the President to conduct legitimate national security wiretaps, since we do not address the substantive scope of that power44 or the exact standards upon which warrants should issue.45 Rather, we merely decide that whatever the legitimate scope of that power, and whatever the standard which must be met to justify the intrusion of a wiretap, the decision as to whether the scope has been exceeded or the standard has been met is to be made by a neutral and disinterested magistrate or judge rather than by an Executive official engaged in investigatory or prosecutorial duties, at least in situations where the subject of the surveillance is a domestic organization that is not the agent of or acting in collaboration with a foreign power.46A.

Before engaging in our Fourth Amendment analysis, we must dispose of an argument, based on alleged precedent, that has been implicitly advanced by several courts47 as well as by appellees in this case.48 This argument in effect asserts that prior presidential practice and several Supreme Court holdings establish the President's preeminent power over the conduct of foreign affairs, and that this power in turn establishes the inherent authority of the President to engage in warrantless national security surveillances as a necessary concomitant of this responsibilities as Commander-in-Chief of the Armed Forces49 and Chief Executive of the nation.50

To be sure, the fact that the Keith Court found the President's powers with respect to domestic affairs insufficient to justify an exception to the warrant requirement when the domestic aspects of national security are involved, yet refused to specify what procedures would be entailed if the national security threat had its origin with foreign powers,51 indicates that any difference in result must turn on the President's peculiar powers in the field of foreign affairs. However, the precedents of Executive practice and judicial decisions merely substantiate the existence of those powers and legitimate the authority of the President to obtain information necessary to protect the national security from foreign aggression; they do not preordain the procedures with which the President must comply in exercising that authority. We will therefore discuss these precedents to elaborate why they are not themselves conclusive of the procedural52 question; in a later section of this opinion we will scrutinize them to determine whether they are based on any policies which would be frustrated if a warrant requirement were to apply to the category of foreign security surveillances.

Admittedly, Presidents since Franklin Roosevelt have authorized their Attorneys General to approve investigations "to secure information by listening devices direct to the conversation or other communications of persons suspected of subversive activities against the Government of the United States."53 However, this practice has never received Supreme Court approval, and there can be no doubt that an unconstitutional practice, no matter how inveterate, cannot be condoned by the judiciary.54 Indeed, the Supreme Court in Keith merely treated the similarly long-standing Executive practice of conducting surveillance "in cases vitally affecting the domestic security"55 as indicative of the unchallenged Executive power to obtain intelligence information, not as determinative of the proper procedures to be followed in so doing.56 Even more important, this Executive practice must be considered in its historical context, which illustrates why the 30-year policy of presidentially directed electronic surveillance has no substantial bearing on whether the practice of warrantless surveillance is now constitutional.

To appreciate this problem, one must remember the Supreme Court's unfortunate decision in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Over vigorous dissents, including the renowned Brandeis celebration of personal privacy, the Olmstead Court held that, absent an actual physical trespass, there is no search within the meaning of the Fourth Amendment. Thus, from 1928 until 1967,57 there was simply no dispute that the Fourth Amendment was inapplicable to non-trespassory electronic surveillance; it was for this reason that warrants were not required. However, shortly after the Olmstead decision, Congress enacted Section 605 of the Federal Communications Act of 1934,58 which provided that

no person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.

Section 605 was interpreted to prohibit the introduction into evidence of both the contents of conversations overheard on wiretaps installed by law enforcement officials, see Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937), and the fruits of such overhearings, see Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939).59

Although various bills were subsequently introduced to avoid the effects of these decisions, they never received congressional approval.60 Nevertheless, the Justice Department construed the Nardone decisions not to prohibit wiretapping itself. As one Attorney General explained:

The question soon arose as to whether mere interception by federal agents of messages was forbidden by Section 605. The Attorney General (Jackson) 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.61

Attorney General Jackson announced in 1940 that the Justice Department would discontinue wiretapping; he reversed that position, however, two months later, after receiving a confidential memorandum from President Roosevelt, the first such presidential directive in the corpus of Executive precedents cited as authorizing warrantless wiretapping. In effect, the memorandum was actually a reaction to the statutory construction decision of Nardone, not an assertion of presidential immunity from constitutional constraints. Accepting the Nardone holding that evidence obtained through wiretaps could not be introduced in criminal prosecutions, President Roosevelt nevertheless did not accept the view that the statute prohibited the wiretapping itself, since he discounted the possibility that any dictum in Nardone was intended "to apply to grave matters involving the defense of the nation."

The Roosevelt memorandum clearly related solely to "wiretapping" which, unlike "bugging," was generally accomplished without a physical trespass.62 Thus neither his memorandum nor those of Presidents Truman and Johnson63 actually discussed the warrant requirement, since Olmstead had rendered the Fourth Amendment inapposite where non-trespassory surveillance was involved. Indeed, presumably because bugging was generally of a trespassory nature and thus subject to Fourth Amendment strictures even before Katz, President Johnson's pre-Katz memorandum on national security surveillance recognized that "(u)tilization of mechanical or electronic devices to overhear non-telephone conversations is an even more difficult problem (than wiretapping), which raises substantial and unresolved questions of Constitutional interpretation."64

We need not recount how this practice of presidentially authorized electronic surveillance has grown from a highly circumscribed and infrequently employed device under President Roosevelt65 to its extensive scope under Presidents Truman and Johnson and its magnitude as an explicitly asserted constitutional exception under Presidents Nixon and Ford.66 Nor need we maintain that if the Supreme Court in Olmstead had held the Fourth Amendment applicable to non-trespassory surveillance, prior Presidents would not have claimed a constitutional exception from the warrant requirement. We recount the background of this Executive practice only to refute the argument that it should be viewed as an affirmative statement by prior Presidents that they were not subject to the warrant procedure of the Fourth Amendment when they acted for national security purposes. Indeed, there are no similar memoranda from these Presidents advocating unwarranted physical trespasses, to which the Fourth Amendment would have applied.67 To be sure, the Executive Branch and its law enforcement agencies had become accustomed to conducting non-trespassory electronic surveillance unhampered by prior judicial scrutiny; it was therefore expedient to argue for a constitutional exception once Katz eliminated the trespassory/non-trespassory distinction in Fourth Amendment doctrine. However, even if we ignore the fact that expediency is no soil in which to root a constitutional doctrine, we must still stress the fact that support for a constitutional exception simply cannot be derived from Executive actions that solely concerned statutory matters and whose evolution was based on considerations other than the Fourth Amendment and the proper means of effectuating its guarantees.

The second type of precedential authority relied on to justify warrantless national security surveillances is comprised of Supreme Court decisions not implicating the Fourth Amendment but relating to the President's broad powers over the conduct of foreign affairs. A very brief survey of these cases will reveal that they may be roughly divided into three overlapping subclasses: (1) cases finding that our "political" relations with foreign governments are nonjusticiable; (2) cases recognizing that the President has certain "inherent" powers in the field of foreign affairs which are not dependent upon congressional authorization; and (3) cases recognizing an evidentiary privilege shielding information pertaining to military or diplomatic secrets from disclosure in open court. It will be seen that despite broad dicta in some of these cases, none stands for the proposition that the Executive Branch is immune from constitutional strictures in the conduct of the nation's foreign affairs. Indeed, after discussing these cases we will scrutinize a separate line of cases which has clearly subjected the Executive Branch to the normal system of constitutional checks and balances, and which has clearly indicated the limited ability of the President to justify actions taken in the United States on the basis of conditions abroad or relations with foreign powers.

The paradigmatic case of the first subclass of precedents concerning the President's conduct of foreign affairs is United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937), which appellees cite for the broad proposition 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 political power (is) not subject to judicial inquiry or decision." Id. at 328, 57 S.Ct. at 760, quoted in brief for appellees at 23. See also Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918); United States v. Pink, 315 U.S. 203, 222-223, 229, 62 S.Ct. 552, 86 L.Ed. 796 (1942). This language should not, however, be divorced from its factual predicates. Belmont, Pink, and Oetjen were all basically "act of state" cases,68 and the sole presidential decision that was given conclusive force concerned who was to be considered the lawful sovereign of the foreign power. Once the legitimate sovereign is determined, the act of state doctrine precludes his acts from being reexamined by the courts of another sovereign state.

In Oetjen, which only involved the "action, in Mexico, of the legitimate Mexican government when dealing with a Mexican citizen," 246 U.S. at 303, 38 S.Ct. at 311, this doctrine disposed of the case.69 However, in Belmont and Pink, which involved an Executive agreement accepting the assignment to the United States of Russia's claims against property nationalized pursuant to a decree by the Russian government, objections were raised that the nationalization violated our Constitution. Although acknowledging the Executive's power to negotiate and finalize the agreement, the Court nevertheless addressed the constitutional validity of the Soviet expropriation. In Belmont the Court held that the Constitution has no extraterritorial effect, except with respect to United States citizens, 301 U.S. at 332, 57 S.Ct. 758, and in Pink the Court held that the Fifth Amendment does not bar the federal government from giving priority to its own claims and those of its nationals as opposed to those of foreign creditors. 315 U.S. at 228, 62 S.Ct. 552. Thus viewed, the language quoted from these cases can be seen to be of limited value when a court is faced with the constitutional validity of actions undertaken domestically, even if in furtherance of the President's foreign affairs powers.

The paradigmatic case of the second subclass of precedents concerning the President's conduct of foreign affairs is United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936), which held that, because they are of different origin and nature, the federal government's domestic and foreign powers are of a very different scope:

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. * * *

* * * (H)e, 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.

Id. at 315-320, 57 S.Ct. at 219, quoted in United States v. Butenko, 3 Cir., 494 F.2d 593, 602 n. 36, cert. denied, sub nom. Ivanov v. United States, 419 U.S. 881, 95 S.Ct. 147, 43 L.Ed.2d 121 (1974). Although Curtiss-Wright certainly supports the contention that the President's powers are not limited to those specifically enumerated in the Constitution, it is inapposite to the question of how those powers are to be reconciled with the mandate of the Fourth Amendment. For as the Curtiss-Wright Court itself recognized, "like every other governmental power, (the President's plenary power over foreign relations) must be exercised in subordination to the applicable provisions of the Constitution." 299 U.S. at 320, 57 S.Ct. at 221 (emphasis added). Moreover, it must be remembered that although the Court recognized a core of inherent presidential power not dependent upon legislative authorization, see id., the question actually presented in Curtiss-Wright was the constitutionality of a congressional delegation of power to the President, that is, whether a congressional resolution granting the President authority to prohibit arms shipments to an area of armed conflict vested him with an excess of discretion.70 Indeed, the dicta as to the need for secrecy of information were uttered in the context of the reasonableness of "congressional legislation which is to be made effective through negotiation and inquiry." Id. Finally, unlike the domestic searches and seizures conducted in this case, the legislation in Curtiss-Wright was "intended to affect a situation in a foreign territory," id. at 321, 57 S.Ct. at 221; Curtiss-Wright, like all other "presidential power" cases, simply did not address the manner in which the President's foreign affairs powers are to be accommodated with the Fourth Amendment's dictates.71

Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948), similarly recognized that the President possesses in his own right certain powers with respect to foreign affairs.72 In construing the judicial review provision of the Civil Aeronautics Act, 49 U.S.C. § 646,73 not to authorize review of those orders, which are subject to approval by the President, concerning applications by citizen carriers to engage in overseas and foreign air transportation, Mr. Justice Jackson, writing for a sharply divided Court, penned an extensive passage which has often been cited or quoted as supporting the President's power to engage in warrantless national security surveillance. See United States v. Brown, 5 Cir., 484 F.2d 418, 426 (1973); United States v. Clay, 5 Cir., 430 F.2d 165, 171 (1970) (alternative holding), reversed on other grounds, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971); United States v. Smith, C.D.Cal., 321 F.Supp. 424, 426 (1971) (dictum); United States v. Butenko, D.N.J., 318 F.Supp. 66, 72 (1970), affirmed, 3 Cir., 494 F.2d 593, cert. denied, 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d 121 (1974). Mr. Justice Jackson proclaimed:

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. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. * * *

333 U.S. at 111, 68 S.Ct. at 436.

It is important to recognize that this declaration was made in the context of determining congressional intent for purposes of construing the judicial review provisions of the Civil Aeronautics Act; indeed, the actual decision in Waterman, based as it was on statutory construction, has been considerably eroded since 1948.74 We thus do not find the above dicta conclusive as to the justiciability of presidential actions when a constitutional provision is at issue. Even Justice Jackson did not hesitate, only four years after authoring the Waterman opinion, to hold President Truman's seizure of domestic steel mills unconstitutional, despite its claimed necessity for preservation of national security during wartime. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (concurring opinion). Dismissing Waterman as an example of the "wide definition of presidential powers under statutory authorization," see id. at 636 n.2, 72 S.Ct. at 871, he warned:

(N)o doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.

Id. at 642, 72 S.Ct. at 873. Since the national security claim in Youngstown was based on armed conflict, the direct action involving foreign affairs, it is doubtful that the Justice would have approved such an expansion of powers over internal affairs, which are inevitably involved in every wiretap situation, merely upon the President's assertion that his "conduct" of foreign policy is affected.

Similarly, we see no reason to take the Waterman dicta as a Supreme Court statement that any issue that touches foreign affairs is to be immunized from judicial review, particularly when there are strong countervailing constitutional interests that merit judicial protection. Indeed, the Supreme Court has itself recognized that

(t)here are sweeping statements to the effect that all questions touching foreign relations are political questions. * * * Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and the possible consequences of judicial action.

Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).75 As the Keith Court realized, the decision whether a citizen's privacy may constitutionally be invaded is not a "political" question similar to such questions as who should receive an overseas air route or who is the lawful sovereign of a foreign country; rather, it is a question of providing a bulwark against Executive excess, a task which the Fourth Amendment deliberately allocated to the neutral officials of the judiciary.76 Moreover, as we will elaborate extensively below, we do not understand why a court cannot sit in camera to receive enough information to determine the legitimacy of Executive requests for authorization to conduct electronic surveillance. No one seriously contends that some degree of in camera judicial review of the same information would be impermissible in the context of a post hoc criminal prosecution based on evidence derived from such surveillance, and the Supreme Court has itself authorized in camera determinations of the validity of asserted Executive privilege with respect to evidence which might reveal military or diplomatic secrets.77 More particularly, the Supreme Court has already directed lower courts to assess the legality under the Fourth Amendment of foreign security wiretaps, and has given no indication whatever that such a task is nonjusticiable.78 Finally, to the extent Executive determinations in the area of foreign relations merit judicial deference or are based on confidential or sensitive information, the judiciary could fashion the standard of probable cause to account for any lack of expertise on its part and to accommodate the need to maintain such confidences as the identity of Government agents and the reasons underlying an Executive decision to pursue a particular foreign policy.79

The paradigmatic case of the third and final subclass of precedents concerning the President's conduct of foreign affairs is found in dicta in the recent decision of United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (July 24, 1974), which reaffirmed the evidentiary privilege of the Executive Branch with respect to production of documents whose publication could endanger military or diplomatic secrets. See also United States v. Reynolds, 345 U.S. 1, 7-11, 73 S.Ct. 528, 97 L.Ed. 727 (1953); Nixon v. Sirica, 159 U.S.App.D.C. 58, 71, 79, 487 F.2d 700, 713, 721 (1973).80 Although quoting the Waterman statement concerning judicial nullification of Executive action based on confidential information, see 418 U.S. at 710, 94 S.Ct. at 3107-3110, and although it was abundantly clear that, if the legitimacy of an asserted privilege could be determined without an in camera inspection, such an inspection should not be ordered,81 the Nixon Court reiterated the longstanding judicial position that the applicability of any privilege is undeniably a question for the courts to decide:

Since this Court has consistently exercised the power to construe and delineate claims (of the Legislative or Executive Branches) arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers.

418 U.S. at 704, 94 S.Ct. at 3105.82 The role of the judiciary and the propriety of judicial scrutiny of documents allegedly pertaining to national security were also evident in the procedure mandated by the Court:

When the subpoenaed material is delivered to the District Judge in camera questions may arise as to the excising of parts (on the basis of military or diplomatic privilege) and it lies within the discretion of that court to seek the aid of the Special Prosecutor and the President's counsel for in camera consideration of the validity of particular excisions, whether the basis of excision is relevancy or admissibility or (sic ) under such cases as Reynolds, supra, or Waterman Steamship, supra.

418 U.S. at 715 n.21, 94 S.Ct. at 3111 n.21.83

This brief survey of the types of cases which have acknowledged, either in holding or in dictum, the vast scope of Executive power in the domain of foreign relations should clarify any misconception that they render that power exempt from judicial review or immune to constitutional limitations. Indeed, there is another series of cases which graphically establishes the limits on presidential power when national security is used as a talisman to invoke extraordinary powers in the conduct of domestic affairs. Probably the most celebrated decision holding executive action unconstitutional is Youngstown Sheet & Tube Co. v. Sawyer, supra, previously referred to with respect to Mr. Justice Jackson's concurrence, which found that President Truman's order directing the Secretary of Commerce to seize and operate most domestic steel mills, in order to avert a nationwide steel strike that the President believed would threaten the national defense, was without statutory or constitutional basis. The case posed the question of inherent Executive power in stark form, since the Korean conflict exacerbated the potential consequences of any steel strike:

The indispensability of steel as a component of substantially all weapons and other war materials led the President to believe that the proposed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel.

343 U.S. at 583, 72 S.Ct. at 865. Although the President asserted that he had inherent power, under the aggregate of his constitutional powers as Commander-in-Chief of the Armed Forces and as the nation's Chief Executive, to avert the "national catastrophe" which would result from such a work stoppage, see id. at 582, 584, 72 S.Ct. 863, a majority of the Court did not hesitate to rule that, under the circumstances of the case, the exercise of his asserted power was unconstitutional. And although Youngstown involved the question of the Executive's usurpation of legislative power without congressional authorization, an analogous problem is presented when the President attempts to usurp the judiciary's traditional and constitutional role of giving prior approval to searches and seizes that need not be immediately undertaken due to exigent circumstances.

A plethora of other cases have similarly recognized constitutional limits on the President's powers as Commander-in-Chief or as the nation's spokesman in the arena of foreign affairs. The Supreme Court has indicated that "even the war power does not remove constitutional limitations safeguarding essential liberties," Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413 (1934) (dictum), and that, despite allegations that a newspaper's "publication of (the contents of a classified study recounting the history of American decision-making on Viet Nam policy) should be restrained because it would gravely prejudice the defense interests of the United States," see United States v. Washington Post Co., 144 U.S.App.D.C. 326, 327, 446 F.2d 1327, 1328 (en banc) (per curiam), affirmed, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), the Government had not overcome the First Amendment's presumption against imposition of prior restraints. See New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam);84 cf. United States v. Robel, 389 U.S. 258, 263, 88 S.Ct. 419, 420, 19 L.Ed.2d 508 (1967) ("the phrase 'war power' cannot be invoked as a talismatic incantation to support any exercise of congressional power which can be brought within its ambit"). The Court has also refused to allow the Executive to ignore constitutional strictures during wartime. See, e. g., Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688 (1946) (substitution of military law for civilian process unconstitutional despite allegation that Hawaii was in danger of attack and martial law was necessary); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 121, 18 L.Ed. 281 (1866) (President cannot impose martial law on civilians, thereby suspending the Sixth Amendment right to jury trial, "where the courts are open and their process unobstructed"); Mitchell v. Harmony, 54 U.S. (13 How.) 115, 134, 14 L.Ed. 75 (1852) (compensation under the Fifth Amendment would be required even if private property were lawfully destroyed by military officers to keep it from falling into enemy hands); cf., e. g., Reid v. Covert, 354 U.S. 1, 5, 17, 77 S.Ct. 1222, 1230, 1 L.Ed.2d 1148 (1957) (plurality opinion) (military trial of civilian dependents abroad unconstitutional, since the "prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined"); Ex parte Merryman, 17 Fed.Cas. No. 9487, p. 144 (C.C.Md.1861) (Taney, C. J.) (President cannot suspend the writ of habeas corpus ). But cf. Hirabayashi v. United States, 320 U.S. 81, 92, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943) (constitutional for Congress and Executive, acting together, to order internment of United States citizens of Japanese ancestry as an emergency war measure). In light of these cases, which unqualifiedly subject the President to constitutional limitations,85 we must undertake an analysis of whether the Fourth Amendment mandates that the President must in fact submit his national security wiretapping installations to prior judicial approval.B.

The Fourth Amendment guarantees one of our "indispensable freedoms,"86 the right to be free from unreasonable searches and seizures. It dictates are simple:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In its brief to this court arguing that warrantless electronic surveillance conducted pursuant to the President's foreign affairs powers does not violate the strictures of this Amendment, the Government87 in effect continues to advance88 a theory of the Fourth Amendment that the Supreme Court has consistently discredited: that "(t)he relevant test is not whether it (was) reasonable to procure a search warrant, but whether the search was reasonable."89 We are advised that we must focus our attention on "the circumstances of this case," brief for appellees at 8; that "the circumstances to be weighed by this Court in considering the reasonableness of the conduct of the Executive challenged herein, are the actions of the Jewish Defense League, directed toward Soviet officials in this country, which were of such a character as to materially effect (sic ) the relations between this country and the Soviet Union, and which through the threat of reciprocal action, endangered the lives of American citizens in that country," id. at 25-26; that we need not consider the implications of warrantless surveillance on the exercise of First Amendment rights, since "the actions of the Jewish Defense League, which necessitated the surveillance of their organization, simply were not limited to the exercise of constitutionally protected speech and conduct," id. at 27 (emphasis added); and that the reasonableness of warrantless wiretapping is somehow predetermined by the legitimate need of the Executive Branch to acquire information, see generally id. at 21-32. These are all erroneous contentions. Unfortunately, in their zeal to present a favorable facade of justifications for these surveillances, appellees have only superficially addressed the substantial questions concerning the relative merits and demerits of requiring the Government to proceed by way of the warrant procedure in obtaining necessary foreign intelligence information.90

Quoting Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973), appellees correctly observe that the "ultimate standard set forth in the Fourth Amendment is reasonableness." Brief for appellees at 25. However, they neglect to quote the immediately following sentence, which represents the proper approach to a Fourth Amendment problem:

In construing this command (of reasonableness), there has been general agreement that "except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." Camara v. Municipal Court, 387 U.S. 523, 528-529 (87 S.Ct. 1727, 1731, 18 L.Ed.2d 930) (1967). See Coolidge v. New Hampshire, 403 U.S. 443, 454-455 (91 S.Ct. 2022, 29 L.Ed.2d 564) (1971).91

It is of course true, as appellees contend, that "the Fourth Amendment does not prohibit all warrantless searches and seizures."92 However, the presumption has always been that a warrant should be obtained whenever practicable, and exceptions to the warrant requirement have been based on exigent or other circumstances where delay would frustrate legitimate police activity. Indeed, in Keith the Supreme Court recognized that these exceptions "are few in number and carefully delineated." 407 U.S. at 318, 92 S.Ct. at 2137.93

Thus, although we do not "seriously doubt in this time of serious international insecurity and peril that there is an imperative necessity for obtaining foreign intelligence information, and we do not believe such gathering is forbidden by the Constitution," brief for appellees at 29-30, quoting United States v. Clay, supra, 430 F.2d at 172, this is but the beginning, not the end, of our inquiry.

The question is not, at this stage at least, whether these inspections may be made, but whether they may be made without a warrant. * * * In assessing whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.

Camara v. Municipal Court, 387 U.S. 523, 533, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930 (1967) (emphasis added). In Keith, the Supreme Court reiterated this methodology:

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.

407 U.S. at 315, 92 S.Ct. at 2135 (emphasis added).94 Similarly, here we must determine whether a warrant requirement will better protect Fourth Amendment rights when foreign intelligence gathering is involved, and whether such a requirement would unduly fetter the legitimate functioning of the Government. For unless there are valid reasons for abrogating the warrant procedure when foreign relations are implicated, the President must comply with that traditional procedure. We cannot, as appellees and some courts have done, simply ignore that threshold question in determining the reasonableness of searches and seizures carried out in furtherance of the President's responsibilities for protecting the national security from foreign dangers.

To admit that there is a legitimate need on the part of the Executive Branch to acquire foreign intelligence information for either long- or short-term national security purposes95 is not, we must repeat, to admit that the locus of initial decision-making power as to the propriety of a particular surveillance should itself rest with the Executive Branch. As the Supreme Court recognized in both Katz v. United States, supra, and Keith, the Fourth Amendment is a bulwark against unreasonable governmental intrusion by non-trespassory as well as by trespassory means; both the spirit and the history of that Amendment demonstrate that there is a legitimate expectation that one's conversations no less than one's home are to be sheltered by the full panoply of Fourth Amendment safeguards. And of the potential safeguards, "(p)rior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights." Keith, 407 U.S. at 318, 92 S.Ct. at 2137.96

Prior judicial review is important not only to protect the privacy interests of those whose conversations the Government seeks to overhear, but also to protect free and robust exercise of the First Amendment rights of speech and association by those who might otherwise be chilled by the fear of unsupervised and unlimited Executive power to institute electronic surveillances.97 As the Keith Court stressed:

National security cases * * * often reflect a convergence of First and Fourth Amendment values not present in cases of "ordinary" crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. * * * History abundantly documents the tendency of Government however benevolent and benign its motives to view with suspicion those who most fervently dispute its policies.

407 U.S. at 313-314, 92 S.Ct. at 2135. Such a convergence of First and Fourth Amendment values is particularly evident in the case before us. Many of the JDL activities98 which antagonized the Soviet government were clearly protected exercises of First Amendment rights.99 Indeed, there is no evidence that more than a small percentage of the thousands of JDL members engaged in criminal activity. Yet the actions of that minority have formed the basis for intrusive surveillance that lasted over seven months and that resulted in seizure of the contents of the conversations of innumerable innocent individuals. As appellants forcefully argue:

(A)n examination of the logs (of the surveillance) would show that it (sic ) contains the names and addresses of many individuals who called the organization, contributed funds or membership dues, and gave the office receptionist information regarding their mailing addresses. A broadside attempt to obtain such a membership list would plainly violate the First Amendment's protection for association (NAACP v. Button (Alabama ex rel. Patterson), 357 U.S. 449 (78 S.Ct. 1163, 2 L.Ed.2d 1488) (1958); Bates v. Little Rock, 361 U.S. 516 (80 S.Ct. 412, 4 L.Ed.2d 480) (1960)), and to obtain it by such clandestine means is a patent evasion of the constitutional liberty.

Brief for appellants at 30.100 In reconciling the Government's need for information with the rights of these individuals, a judge in a warrant proceeding might have limited the surveillance to the phones of those actually suspected of criminal behavior, or directed that no recordings or logs be made101 of conversations that clearly pertained to lawful JDL political or organizational activities.

Of course, even if this case itself involved only nonprotected activity, the problem of chilling First Amendment rights of others would remain. In Keith, for example, the defendant's alleged bombing of a CIA office would certainly have been beyond the pale of protected speech;102 yet the Court recognized that similar cases often would affect the exercise of fundamental personal rights.103 More important, appellees here do not limit their assertion of Executive power, and the holding of the District Court would appear to apply as readily to situations in which a foreign government threatened retaliation against American officials based solely on protected activities of American citizens.104 Nor would a limitation of such warrantless surveillance to "agents" of a foreign power105 alter the fact that First Amendment rights of others are likely to be chilled. Under such a test, a few alien members in a political organization would justify surveillance of the conversations of all members. For example, antiwar organizations which sponsored speeches by South Vietnamese political dissenters during the 1960's could have been wiretapped without a warrant because of the disruptive effect their actions allegedly had on the conduct of peace negotiations in Paris.106 Indeed, even a domestic political leader could be wiretapped without a warrant if the Government believed he had wittingly or unwittingly become the "agent" of a foreign power.107 To allow the Executive Branch to make its own determinations as to such matters invites abuse, and public knowledge that such abuse is possible can exert a deathly pall over vigorous First Amendment debate on issues of foreign policy.108

Thus confronted with the realization that prior judicial review can serve to safeguard both First and Fourth Amendment rights,109 we turn our attention to possible arguments for abrogating the warrant requirement where our national security is endangered by foreign threats. In so doing, we are mindful of the warning of the Supreme Court that such arguments must not be grounded in expediency or utility, but must relate to factors that would cause the warrant procedure to needlessly frustrate legitimate gathering of foreign intelligence information.110 However, since appellees have not directed our attention to such factors, we are relegated to seeking the rationales which have caused several other courts to except foreign intelligence activities from the strictures of prior judicial authorization.

In Keith, the Supreme Court cited United States v. Smith, supra, 321 F.Supp. at 425-426, United States v. Clay, supra, and American Bar Association Project on Standards for Criminal Justice, Electronic Surveillance 120, 121 (Approved Draft 1971, and Feb. 1971 Supp. 11), for the "view that warrantless surveillance * * * may be constitutional where foreign powers are involved." 407 U.S. 322 n.20, 92 S.Ct. at 2139.111 The American Bar Association Project, after noting that "the national security interest is properly a concern primarily of the federal government under our constitutional system," merely asserts that "(l)imitations which are proper when the internal affairs of the nation are solely involved become artificial when international realities are considered," id. at 121; a system of prior judicial supervision would be "unworkable in this area." Id. No reasoning whatever is propounded as to why the warrant procedure would actually be "artificial" or "unworkable."112 In Clay the Fifth Circuit was similarly opaque. After determining that the wiretap was approved by the Attorney General and was made in connection with acquisition of foreign intelligence information, the court simply asserted:

No one would seriously doubt in this time of serious international insecurity and peril that there is an imperative necessity for obtaining foreign intelligence information, and we do not believe such gathering is forbidden by the Constitution or by statutory provision * * *.

430 F.2d at 172.113 We have, of course, recognized the necessity for such intelligence gathering,114 but we realize the necessity of also ascertaining whether such activities must first receive prior judicial approval. The Fifth Circuit, however, apparently advanced no reasons for its conclusion that no warrant is in fact required.

In Smith, the possible foreign security exception was mentioned purely as dictum, since the court was only presented with the question eventually decided in Keith. In deciding that question against the permissibility of warrantless domestic security surveillance, the Smith court distinguished a situation in which warrantless surveillance was predicated on foreign threats to the national security:

It might very well be that warrantless surveillance of this type, while unconstitutional in the domestic situation, would be constitutional in the area of foreign affairs. This possible distinction is largely due to the President's long-recognized, inherent power with respect to foreign relations.

321 F.Supp. at 426, citing Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., supra, and United States v. Belmont, supra. We have already discussed this inherent power of the President,115 and have shown that it does not answer the question of the propriety of an exception to the warrant procedure. The Smith court, unlike appellees in this case, acknowledged this fact, since it then analyzed the asserted exception with respect to domestic security taps in terms of whether any factors militated in favor of abrogating the traditional warrant procedure.116 The principal factor which the Government there urged for that result was the fact

that the decision to initiate surveillance in this type of case must be "based on a wide variety of considerations and on many pieces of information which cannot readily be presented to a magistrate". Gov't Br. at 8.

321 F.Supp. at 428. Although the Smith court rejected this factor as a justification for warrantless domestic security surveillance, it noted that it might have greater force in the foreign security context:

In cases involving foreign affairs this argument might very well prevail. In that situation, numerous non-judicial factors are relevant and the decision would probably be far removed from the consideration of probable cause.

Id.117 This argument, which we will label the "judicial competence" argument, has some merit, and we will therefore address it as a possible justification for dispensing with the warrant requirement in foreign security cases.

Before doing so, however, we must consider whether post-Keith cases advanced other possible factors which we must consider. The cases, which all arose in the context of criminal prosecutions involving Alderman procedures,118 include United States v. Brown, 5 Cir., 484 F.2d 418 (1973), affirming E.D.La., 317 F.Supp. 531 (1970), and United States v. Butenko, 3 Cir., 494 F.2d 593 (1974) (en banc ), affirming D.N.J., 318 F.Supp. 66 (1970), cert. denied, 419 U.S. 881, 95 S.Ct. 147, 43 L.Ed.2d 121 (1974). Our reading of these opinions indicates that they simply overlooked the substantial body of case law,119 including Keith, which rejects the contention that the warrant requirement may be abrogated merely because the Government has a legitimate need to engage in certain activity. Instead of following the proper analysis of determining whether a warrant proceeding would frustrate the legitimate need of the Executive to acquire foreign intelligence information, these courts treated the need itself as determinative of the legality of warrantless surveillance.120 We find this methodology simply inconsistent with the spirit and holding of Keith and prior cases, particularly given the substantial First and Fourth Amendment interests that may be infringed by unsupervised surveillance.

Thus, mindful of the fact that the existence of presidential powers, whatever their scope, does not preclude a finding that the legitimate exercise of those powers would in no way be frustrated by subjecting them to prior judicial approval, we must look to commentators121 and our own reasoning for possible justifications for exempting such surveillance from prior judicial scrutiny. In addition to the "judicial competence" justification,122 such factors might include (2) the danger of "security leaks" which might endanger the lives of informants and agents and which might seriously harm the national security;123 (3) the fact that such surveillance is of the "ongoing intelligence gathering" type and that, since criminal prosecutions are less likely, Fourth Amendment protections are not as essential as in a normal criminal context;124 (4) the possibility that the delay involved in the warrant procedure might result in substantial harm to the national security;125 and (5) the fact that the administrative burden on the courts or the Executive Branch which would result from such a requirement would be enormous.126 We find that none of these factors is compelling.

(1) "Judicial competence": Although the judicial competence factor arguably has more force when made in the foreign rather than the domestic security context, the response of Keith to the analogous argument is nevertheless pertinent to any claim that foreign security involves decisions and information beyond the scope of judicial expertise and experience:

We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.

407 U.S. at 320, 92 S.Ct. at 2138 (emphasis added). Similarly, we do not believe federal judges will be "insensitive to or uncomprehending of the issues involved in" foreign security cases,127 or that judges will deny any legitimate requests for a warrant.

Congress apparently concurs in the belief that judges are competent to analyze the substance of matters allegedly pertaining to the national security. This attitude was unambiguously expressed by the passage of Public Law No. 93-502, 88 Stat. 1561 (1974), which amended the Freedom of Information Act, 5 U.S.C. § 552 (1970),128 to, inter alia, overrule the Supreme Court's decision in EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). In Mink the Court interpreted 5 U.S.C. § 552(b)(1), which exempted from the forced disclosure mandate of the Act those matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," not to allow judicial review of Executive security classifications and not even to allow in camera inspection of a contested document bearing a security classification so that nonsecret matter could be separated from secret matter and ordered disclosed. 410 U.S. at 81-84, 93 S.Ct. 827. Congress responded with amendments to Section 552 which altered Section 552(b)(1) to exempt from disclosure those documents which are:

(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.129

It also specified that when the question of discoverability of a document is placed in issue, "the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld * * *."130

Although the conference report on these amendments expressed a congressional expectation that, since "Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse effects might occur as a result of public disclosure of a particular classified record, * * * Federal courts * * * will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record," it unequivocally stated that the Mink decision was to be legislatively overruled with respect to in camera review and that the propriety of a document's classification was to be judicially determined with respect to "both procedural and substantive criteria contained in the Executive order under which it was classified."131 Moreover, despite the fact that the amendments were vetoed by the President, primarily on the ground that "the courts should not be forced to make what amounts to the initial classification decision in sensitive and complex areas where they have no particular expertise," 120 Cong.Rec. H10705 (daily ed. Nov. 18, 1974) (Veto Message from the President of the United States), both Houses of Congress overwhelmingly voted to repudiate that contention by convincingly overriding the presidential veto.132 Although such a congressional expression in no way binds us in the context of Fourth Amendment adjudication, we find that this vote of confidence in the competence of the judiciary affirms our own belief that judges do, in fact, have the capabilities needed to consider and weigh data pertaining to the foreign affairs and national defense of this nation.

The description of current Executive procedures for authorizing national security wiretapping also gives us reason to hesitate in according undue deference to the "expertise" that the Executive Branch brings to each decision. Former Attorney General Saxbe,133 testifying on "National Security Electronic Surveillance and S. 2820134 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary," (Dept. of Justice release, Oct. 2, 1974), admitted that the practice of warrantless surveillance had apparently been abused in the past, see id. at 5-6,135 and then described current procedures:

First of all, for a request for a foreign intelligence surveillance to survive, it must first be approved by several different levels of supervision within the FBI before it even reaches the Director's office, and the request must contain very detailed information.

If the request originates in an FBI field office, the proposal will be considered by the case Agent, the Supervisor, and the Special Agent in Charge of the field office. At FBI Headquarters the request will be considered by the Supervisory Special Agent, the Unit Chief, the Section Chief, the Branch Chief, the Assistant Director, the Deputy Associate Director, and the Associate Director before it reaches the Director for his approval.

If the Director approves the request, it is then sent to the Assistant Attorney General in charge of the Criminal Division, Mr. Petersen. He then forwards the request with his recommendation and comments for my consideration. If, and only if, I approve the request can the surveillance be installed and then for a maximum period of three months, after which I will approve a renewal only with what I deem sufficient justification. Let me assure you that I do not approve these automatically.

Numerous requests are turned down long before they reach my desk. I personally have withheld some authorizations and on at least one occasion I have denied a request for an extension.

Id. at 6-7. With due deference to the former Attorney General, we believe this description, when considered together with the fact that there is a high turnover in the office of Attorney General,136 indicates that most actual decision making with respect to wiretapping occurs before a request reaches the desk of the Attorney General, and that he would therefore be predisposed to rely on the recommendations of his subordinates.137 We cannot blindly accept the argument that the Attorney General, who is chosen for his abilities as a lawyer rather than his acumen as a diplomat, is more likely than a federal judge138 to have the analytical ability or sensitivity to foreign affairs necessary to evaluate such recommendations. Indeed, there is even a danger that an Attorney General, pressed for time and involved in other activities, will effectively delegate the task of supervising national security wiretaps to his aides; such was the case with his arguably less important although statutorily mandated duty to supervise wiretapping under the provisions of Title III.139 To the extent the Attorney General bases his decisions on the factual data and recommendations of those career officials schooled in foreign relations and intelligence gathering, judges can be similarly informed in camera, as they often are during post hoc judicial review in criminal prosecutions or civil cases.140 We simply do not believe that any margin of expertise possessed by the Attorney General can compensate for the neutral and detached attitude that a judge would bring to his decision; given the likely deference that a judge will accord the Attorney General's request, there is no substantial likelihood that any marginal lack of expertise will result in denial of legitimate requests for a warrant and frustration of proper intelligence gathering on the part of the Executive.

Finally, the Executive Branch itself acknowledges the fact that courts are competent to conduct post hoc review to determine whether a surveillance is reasonable. In its Memorandum for the United States in Ivanov v. United States, cert. denied, 419 U.S. 881, 95 S.Ct. 147, 43 L.Ed.2d 121 (1974) (responding to petition for writ of certiorari to the Third Circuit), the Government took the position that since, in its judgment, reasonable warrantless national security surveillance is constitutional, Alderman does not require anything more than an in camera determination that the evidence was obtained from a reasonable wiretap. The Government argued:

The task of determining whether the purpose of a surveillance was foreign intelligence gathering is clearly not "too complex" nor is "the margin of error too great to rely wholly on the in camera judgment of the trial court." * * * Rather, in a field as delicate and sensitive as foreign intelligence gathering, there is every reason to proceed in camera and without disclosure.

Id. at 14.141 To be sure, the Government was making these arguments in support of restricting access to foreign intelligence information to the judge rather than to the private litigants. But the arguments must be evaluated against the realization that no one seriously denies that at least post hoc judicial review, under whatever standard of "reasonableness," is proper even for wiretaps installed pursuant to the President's foreign affairs powers.142 If a court can make a proper determination of reasonableness after a wiretap has been installed, and since the reasonableness of a search and seizure cannot depend on information secured after it occurs,143 there is no reason why judges should be presumed to be incompetent before the surveillance takes place.

Although judicial competence per se is thus no argument against prior rather than post hoc judicial review, there may be other factors actually behind the competence theory which would suggest that a warrant requirement would frustrate legitimate Executive surveillance. First, there may be a fear on the part of the Government that the standard of probable cause will be higher in a prior rather than in a post hoc judicial proceeding. Even if this were true as a practical matter, it is clearly wrong as a matter of law, and we decline to base a decision as to the legality of warrantless national security surveillances on so thin a reed. Moreover, we doubt whether this fear144 is realistic as a practical matter. As the quote from Keith indicates,145 judges are likely to be highly deferential to the Executive's determination concerning need to install a wiretap, particularly where a judicial error might substantially harm the national interest;146 in a post hoc review in a criminal or civil case, removed from the exigencies of day-to-day intelligence gathering activities, a court might be harsher in its judgment as to the reasonableness of the particular surveillance. And if pure practicalities are being considered, it should be remembered that the Government has its choice as to what judge to seek a warrant from,147 a circumstance usually not present with respect to post hoc judicial review.148

Actually, this aspect of the competence argument is properly directed to the standard for judicial review, not to whether it should occur before or after the surveillance takes place. To the extent nonjudicial policy factors constitute the Executive's rationale for desiring intelligence information, it is possible the standard for probable cause would reflect that fact.149 We must reemphasize the fact that we are not presented with the question of the scope of the President's substantive powers, but only with the procedural question whether a presidentially directed surveillance must run the gauntlet of judicial review before or after its installation. Since factors relating to judicial competence may arise at either time, we believe they should at most affect the standard of judicial review, not its timing.

Focusing on the timing of judicial intervention, however, we perceive a second fear that may actually be behind the judicial competence argument: even if the same standard is applied in prior as in post hoc judicial proceedings, an error before a surveillance occurs is likely to cause irreparable harm to the national security, whereas an error after it occurs may only result in improper award of damages or release of a single criminal defendant. The assumptions upon which this fear is based are, to say the least, questionable, and relate to the implicit belief that national security or foreign affairs information is of paramount import in all situations. The argument assumes that the erroneous invasion of individual privacy which prior review could prevent is invariably of less importance than the erroneous denial of information which could have been obtained from a reasonable wiretap. Even ignoring our belief that any error in a warrant proceeding is likely to be in favor of the Government, we find this view of foreign security information to be unduly myopic. Not only does it relegate the personal interests protected by the Fourth and First Amendments to the level of second-class rights,150 it also naively equates all foreign threats with such dangers as another Pearl Harbor.151

Domestic security information, which must, under Keith, be obtained pursuant to the warrant procedure, may be no less important than foreign security information, and the potential harm from judicial error no less devastating. For example, if there were grounds to believe that a massive conspiracy existed among military officers in this country to overthrow civilian rule and institute martial law, a judge would have to approve any surveillance. Yet the Government would have us approve a rule of law that would grant the President the power to himself authorize surveillance to obtain information pertaining to routine commercial affairs, so long as they "affected" such an international problem as our balance of payments.152 And it should be obvious that as the magnitude of a national security threat approaches that of a preemptive nuclear attack rather than that of a minor disruption of trade, the probability that a judge would erroneously deny the Executive the requested warrant approaches the infinitesimal.

A third possible fear behind the competence argument, and the one that is most realistic, is that a warrant procedure will deny the Government the benefits flowing from the fact that most surveillance could be barricaded from any judicial review if there were only post hoc review proceedings. Since surveillance often would not be used for prosecutorial purposes,153 and since few individuals would institute damage actions on the mere possibility that they were the subject of an unreasonable wiretap, much warrantless surveillance would never have its legality challenged.154 However, every search and seizure is properly subject to judicial review, and the fact that some searches are not actually reviewed is a mere convenience. To the extent that this argument is made an affirmative reason for abrogating the warrant procedure as a frustration of Executive power, it amounts to no more than an assertion that the Executive Branch's illegal activities are best kept secret.155 We find such an argument to be, to say the least, somewhat less than compelling.

Thus, given the fact that judicial review of Executive-ordered surveillance would be proper in any event after it occurs, the judicial competence argument has no substantial merit as a rationale for abrogating the warrant procedure.

(2) "Security leaks": It has been said that

(t)he 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. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.156

Disclosure of the secret information on which Executive decisions to install a wiretap are made would arguably pose the threat of security leaks which might endanger the national security or the lives of informants and agents, or which might frustrate the proposed surveillance itself. This argument was rejected in the domestic security context by the Supreme Court in Keith, see 407 U.S. at 320-321, 92 S.Ct. 2125, and we find that it is no more persuasive in the foreign security context. Since the warrant proceeding is conducted ex parte, disclosure of information can be restricted to the judge; administrative personnel can be provided by the Government should he require clerical or other assistance.157

Moreover, the Government can seek the warrant from a judge whose loyalty and discretion it considers unimpeachable. Indeed, judges generally have maintained confidences with respect to sensitive information in criminal investigations,158 and are likely to be even more careful where the national security is at stake.159 And as the Keith Court observed, "Title III * * * already has imposed this responsibility on the judiciary in connection with such crimes as espionage, sabotage and treason, § 2516(1)(a) and (c), each of which may involve domestic as well as foreign security threats."160 Furthermore, except for the possibility of frustrating the tap itself, most risks of security leakage will not be lessened in a post hoc review setting.161 Finally, it is important to realize that the judge need only satisfy himself that "probable cause"162 to conduct the surveillance exists. Thus, in cases where wiretapping would in fact be reasonable, the Government should be able to make this showing without actually disclosing the vast majority of the data it has available;163 indeed, even as to information which it does disclose, it could withhold the name or other information which would identify an informant or destroy the cover of an agent.164

(3) "Strategic" information-gathering: Foreign security wiretaps, even more than domestic security wiretaps,165 are likely to be aimed at collecting and maintaining "strategic" intelligence information on a continuing basis rather than at obtaining evidence for use in criminal prosecutions. Such long-term intelligence gathering is supposedly less offensive to Fourth Amendment values and less susceptible to judicial review than are searches in the criminal context.166 It is, of course, a myth to characterize national security surveillance as purely non-prosecutorial in the criminal sense; the whole controversy concerning wiretap legislation pre-Katz revolved around the question whether evidence obtained in the course of a national security surveillance should be admitted into evidence if the wiretap had not received prior judicial approval.167 Incriminating evidence is often uncovered through such a wiretap,168 and the cases which have dealt with the issue of the constitutionality of warrantless national security surveillance169 demonstrate that the Executive Branch will not hesitate to utilize the fruits of its surveillance to obtain criminal convictions.170

More important is the fact that "(o)fficial surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech." Keith, supra, 407 U.S. at 320, 92 S.Ct. at 2138 (emphasis added). Indeed, the ongoing nature of such surveillance just increases its intrusiveness and the likelihood that individuals will fear that their conversations are being overheard. See id. Nor are the Fourth Amendment privacy interests any weaker merely because the offensive search does not lead to a criminal prosecution.171 Public disclosure of many legal activities could be highly embarrassing and intimidating; indeed, mere knowledge that one's "private" discussions have been overheard may be extremely insulting or traumatic.172 In short, the premise behind the "strategic information" rationale for abrogating the warrant procedure, the idea that the Fourth Amendment is limited to remedies in the criminal process, is anomalous, since it would suggest that the more innocent the individual the less protection his privacy interests merit.173

(4) "Delay ": It is frequently asserted that electronic surveillance must often be hastily instituted, and that the delay which would result from compliance with a warrant procedure could mean loss of essential intelligence information and subsequent disastrous harm to the national security.174 Admitting the validity of this contention, we nevertheless find it to be nothing more than an argument that warrantless electronic surveillance, like many other warrantless searches,175 may be justifiable in exigent circumstances. It cannot be gainsaid that even if national security surveillance is subjected to prior judicial approval a traditional exigent circumstances exception should be available where delay might cause irreparable harm. Indeed, even Title III provides for up to 48 hours of warrantless surveillance if "an emergency situation exists with respect to conspiratorial activities threatening the national security interest."176 However, to allow the potential for harm in certain exigent circumstances to serve as a justification for dispensing with a warrant in all national security contexts is to let the tail wag the dog. And particularly when one recalls that the average national security surveillance has a duration of from 70 to 200 days,177 it is obvious that even if a warrantless wiretap must be hastily installed, a judge could be requested within a brief period to authorize its continuation.178 Finally, given former Attorney General Saxbe's description of Executive procedures relating to departmental wiretap authorizations,179 it would appear that most wiretap installations are carefully planned in advance particularly where the goal is general intelligence gathering. Thus in the vast majority of cases delay will be no problem, and those rare cases in which it would be a problem may be subsumed within the normal exception for searches conducted in exigent circumstances.

(5) "Administrative burden" on courts and the Executive: It has been suggested that

judges (should not be) burdened with the grave responsibility of deciding whether (national security) surveillances are reasonable and necessary to fulfill information requirements of foreign policy and national defense (.)180

If this "burden" refers to the imposition of a task beyond the capability of the judiciary, our "judicial competence" argument should indicate our feelings as to this asserted factor for abrogating the warrant procedure. If, however, it refers to the desirability of removing the weight of responsibility for making admittedly difficult decisions from our shoulders, we can only respond that we are grateful for the sympathy with which our role is viewed. Nevertheless, we are mindful that the judicial system is the focal point of all the conflicts and controversies of our society, and that the task of a judge, though not always a pleasant or a simple one, is to resolve those controversies in the fairest manner of which he is capable. Faced with such problems, we can only recall Chief Justice Marshall's lament:

With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, then to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821). Although the "burden" argument may be cast alternatively as the administrative cost and burden which will be imposed on the Executive Branch if it must justify in every case181 its request for a wiretap, we decline to accept an argument grounded in expediency as a basis for resolving our constitutional inquiry. As the Supreme Court in Keith observed in rejecting a similar argument in the domestic context, "Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values." 407 U.S. at 321, 92 S.Ct. at 2139.182

Having analyzed those factors which might dictate abrogation of the warrant requirement for that category of cases in which surveillance is based upon the President's constitutional powers with respect to the conduct of foreign affairs, we find that they do not suggest that the warrant procedure would actually fetter the legitimate intelligence gathering functions of the Executive Branch. Indeed, our analysis would suggest that, absent exigent circumstances, no wiretapping in the area of foreign affairs should be exempt from prior judicial scrutiny, irrespective of the justification for the surveillance or the importance of the information sought. As in Keith, we need not rest our decision on so broad a holding, since we are only presented with a case in which foreign threats of retaliation against individual citizens abroad were provoked by the actions of the domestic organization which was subsequently wiretapped, rather than a case in which the wiretapped organization acted in collaboration with, or as the agent of, the foreign power from which the threat emanated.183

In the Solicitor General's brief to the Supreme Court in Keith, the Government argued strenuously that foreign and domestic threats to the national security were often intertwined and that, since warrantless surveillance for foreign intelligence gathering should certainly be sustained, warrants should not be required for any national security surveillance.184 The Court rejected this argument by imposing the warrant procedure on domestic security wiretapping and limiting the scope of its decision. Pointing to the facts before it, the Keith Court made clear that no foreign threat was involved:

(T)he 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. 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 supplied). There is no evidence of any involvement, directly or indirectly, of a foreign power.185

In concluding its opinion, the Court reemphasized the scope of its holding:

(T)his case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.186

Although appellants contend and appellees admit187 that the JDL is a domestic organization with no Russian connection, that fact does not mean that appellants are correct in their assertion188 that the warrantless surveillance here is automatically unlawful. In Keith, "(t)here was no evidence of any involvement, directly or indirectly, of a foreign power." Here, by contrast, while there is no collaboration between the JDL and Russia quite the reverse JDL's activities did involve Russia in a confrontation with the United States. Thus this case does indeed involve the foreign affairs of this country and therefore falls outside the holding in Keith and into the area it reserved for future disposition. Although the type of involvement here was not anticipated in Keith, there is no indication that Keith intended to limit "involvement" to collaboration with a foreign power. Collaboration simply was the most obvious example of how a domestic organization could become involved in the foreign affairs of this country.189

The rationale underlying Keith nevertheless requires that warrants be obtained before surveillance can take place on a domestic organization that shares no community of interest with the foreign power "involved" in the case. Judge Costantino, in assessing the legality of the same wiretaps involved in this case, although in a criminal context, succinctly stated the appropriateness of applying the reasoning of Keith to our case:

(T)he President's duty "to preserve, protect and defend the Constitution of the United States," was not (under Keith ) a sufficient basis to allow warrantless surveillance for the purpose of "domestic security." It would likewise be held, then, that the President's power to conduct foreign affairs would not be a basis for allowing warrantless surveillance of domestic groups whose activities and conduct are not in any way controlled by a foreign power. That a domestic group, through conduct which would be violative of the internal laws of this country, may by some indirect manner affect the relations between this country and another would not be, under the reasoning of Eastern District of Michigan, a sufficient cause to allow warrantless surveillance. Of greatest significance, is the fact that the conduct which forms the gravamen of this case involves "domestic" crimes, and that there is only an indirect relation between the alleged conduct of the defendants and the foreign affairs of this country.190

Much of the Keith opinion was concerned with the vagueness of the asserted power to protect the "domestic security"191 and the substantial danger to political dissent that could result from abuse of such a power. As we have noted,192 the concept of "affecting foreign relations" is no less vague and no less subject to abuse, particularly when a domestic organization has no positive nexus with the foreign power making threats against this country. It would indeed be anomalous to allow the Government to engage in warrantless surreptitious surveillance of activity, which would otherwise remain private and protected, merely because another government is antagonized by such activity. To the extent such activity constitutes domestic crime, there is no reason to accord the suspect less protection merely because a foreign power objects to the activity; to the extent such activity constitutes protected speech, there is the inherent danger that the Government will use the protests of foreign powers or the fact that the speech "affects" its foreign relations to dampen protests to its foreign relations policies. For example, such an exception to the warrant requirement would have allowed warrantless surveillance of all groups protesting our policies during the conflict in Vietnam, for the Johnson and Nixon Administrations were both of the opinion, in concurrence with the opinion of the government of South Vietnam, that such protests were making successful negotiation in Paris impossible and military operations in Vietnam more difficult, and that they thus posed a severe threat to the national security.193

Moreover, when domestic organizations are involved, not only are the interests in favor of requiring a warrant strongest, but the possible arguments against the warrant procedure, which are weak in any event, have even less force. There is less objection to the competence of judges to properly weigh the respective interests, since judges are both familiar with criminal activity and sensitive to the importance of protecting First Amendment rights. For example, the Government does not suggest that we are incapable of assessing the reasonableness of the wiretaps here in question on the basis of State Department documents which were also available when the surveillance was originally instituted. Furthermore, security leaks during a warrant proceeding are less likely to disrupt foreign relations in a case such as the present one, since the domestic organization by hypothesis has no ties with the foreign power. Indeed, if it had been disclosed that JDL conversations were being overheard in an effort to appease the Soviet Government, a furor might have resulted domestically, but it is doubtful such a disclosure would have caused the Soviet Union to act to our detriment.194 Moreover, in this case all of the essential information which prompted the wiretap installation, including the fact of Soviet protests, was already in the public domain.195 Nor is there as much force in the argument that long-term surveillance is justifiable for strategic information gathering purposes when the domestic organization can yield no information about "the intentions, capabilities and possible responses of other countries."196 For example, surveillance of the JDL could provide no information as to action which the Soviet Government would itself take. To the extent information on criminal activities which would antagonize the Soviet Union could be obtained through surveillance, a traditional warrant would serve as well; to the extent information on First Amendment demonstrations which would antagonize the Soviet Union could be obtained, it is doubtful whether the Government could or should be able to take any actions to prevent such "embarrassment."197

Most important, given the way in which almost any activity can be said to relate, at least remotely, to foreign affairs or foreign policy making, the potential scope of such an exception to the warrant requirement is boundless, and thus a substantial danger to the values the Fourth Amendment was fashioned to protect. And although we doubt that an exception to the warrant requirement should be created even for the activities of foreign agents or collaborators, at least such an exception would be more "carefully delineated"198 than an exception allowing warrantless wiretapping whenever the activities of domestic groups incur the wrath of a foreign power or affect in any manner the conduct of our foreign affairs.199

Since we have determined that the President's authority with respect to the conduct of foreign affairs does not excuse him from seeking judicial approval before instituting a surveillance, at least where the subject of the surveillance is a domestic organization that is not the agent of or acting in collaboration with a foreign power, we feel we should at least briefly adumbrate our views as to the role of the judge in such a proceeding. Although such a statement is not necessary for resolution of the pending case, we believe it would serve the salutary purpose of informing both the Executive Branch and members of the judiciary of some of the considerations which should guide their actions in the future.200 Moreover, we find such a statement particularly necessary in light of the fact that those courts which have limited the role of the judiciary to post hoc determination of the "reasonableness" of national security surveillances have also sharply circumscribed the judiciary's role in balancing the actual need of the Government for specific information against the interest in protecting the First and Fourth Amendment rights of our citizens.

For example, the Third Circuit in Butenko stated:

Since the primary purpose of these searches is to secure foreign intelligence information, a judge, when reviewing a particular search must, above all, be assured that this was in fact its primary purpose and that the accumulation of evidence of criminal activity was incidental. * * * Since, we reiterate, the district court has found that the * * * interceptions of conversations of (defendant) Ivanov were "solely for the purpose of gathering foreign intelligence information," they are reasonable under the Fourth Amendment.

United States v. Butenko, supra, 494 F.2d at 606 (emphasis added). And the Solicitor General, in his Memorandum in Response to the Petition for a Writ of Certiorari in Butenko, suggested that "(a)ll that the Fourth Amendment requires is a determination that the purpose of the surveillance is intelligence gathering."201 The full significance of this formulation only becomes apparent when one recognizes not only that it focuses on only one side of the Fourth Amendment balance, but also that "intelligence gathering" pursuant to the President's foreign affairs powers is not thereby limited to situations such as those enumerated in Title III threats of foreign attack or aggression, and intelligence and counterintelligence activities.202 The Third Circuit found that the President's duties as Commander-in-Chief and as the nation's representative in foreign affairs implied the responsibility to "exercise an informed judgment." 494 F.2d at 601. This responsibility seemingly opened the door to warrantless Executive intelligence gathering that would relate even remotely to any decision, however minor, pertaining to foreign relations: "(T)he efficient operation of the Executive's foreign policy-making apparatus depends on a continuous flow of information. A court should be wary of interfering with this flow. * * * The government (has a weighty interest in acquiring) the information necessary to exercise an informed judgment in foreign affairs." Id. at 605-606 (emphasis added).203

We recognize that the Supreme Court has indicated that the "probable cause" standard for warrant issuance is a flexible one which may vary depending on the type of search involved and the Government interests subserved thereby.204 And there are factors which indicate that the determination of probable cause for conducting a foreign, no less than for conducting a domestic, security surveillance should reflect the fact that "the focus of * * * surveillance may be less precise than that directed against more conventional types of crime." 407 U.S. at 322, 92 S.Ct. at 2139. Thus it would appear to be proper to issue warrants where there is "probable cause" to believe that certain categories of intelligence information are likely to be obtained from the surveillance, even though evidence of crime is neither sought nor likely to be uncovered.205 However, we do not believe that every search must be deemed to be "reasonable" merely because the Third Circuit's test is met and some information relevant to any decision relating to foreign affairs is likely to be obtained from the surveillance. Such an approach would not assure that surveillances are "reasonable both in relation to the legitimate need of the Government for intelligence information and the protected rights of our citizens," 407 U.S. at 323, 92 S.Ct. at 2139 (emphasis added); the Butenko test assesses neither the Government's need for the information nor the countervailing individual interests affected by a search.

To be sure, some information relating to foreign affairs is of paramount importance for example, information such as that relating to imminent attack or other hostile actions by a foreign power, or to prevention of espionage activities directed at obtaining important military defense data. On the other hand, there is some information which, though "relevant" to foreign affairs decisions, would appear to be of minimal importance to the Government for example, information pertaining to the attitudes of hotel proprietors and restaurateurs may be "relevant" to assuring that no embarrassing "international incidents" occur when this counry hosts foreign Olympic teams or the Bolshoi Ballet.206 This is not to say that the President or Congress would never have authority to obtain such information for example, by conditioning governmental patronizing of these establishments on the disclosure of certain information by their owners. Rather, it is to say that obtaining such information through installation of wiretaps would be unreasonable, particularly given the low ratio of expected relevant information to nonrelevant information and the relative nonurgency of the information sought.207 In this circumstance, Fourth Amendment protection under the Butenko test would "approach the evaporation point."208

This example also highlights another possible factor that judges might consider in determining whether a proposed search would be reasonable. Since most of the crucial intelligence information sought through legitimate surveillance is likely to relate to military or diplomatic affairs, and since the sources of such information are likely to be aliens whose primary allegiance is to the foreign power and who are diplomatically immune from various types of legal process, there may be a greater justification for conducting electronic surveillance when such aliens are the proposed subjects than when citizens or domestic organizations are involved. In short, a judge could require a showing that the subject of the surveillance is hostile to the Government and that alternative means of obtaining the information, such as subpoenas or routine FBI questioning, have been exhausted or would prove to be unsuccessful or inconsistent with the information gathering goals.209 Certainly there are less intrusive means than surreptitious surveillance for obtaining information concerning domestic, political, economic, or social events which might nevertheless tangentially affect the conduct of foreign affairs.

Nor does the role accorded the judiciary by the Butenko test allow for adequate protection of individual constitutional rights. For the intrusiveness of a wiretap certainly bears on whether it is constitutionally "unreasonable." If only one member of the JDL were engaged in activity that would justify wiretapping, the Butenko test would allow installation of a wiretap on any phone he might use, regardless of the number of others whose conversations would also be overheard. But even if the Government sought to institute the surveillance on JDL's headquarters in good faith, a court might conclude that a tap on the individual's home phone would serve the Government's purposes just as adequately, particularly if the information sought were not of surpassing import.210 Moreover, a judge could pass on the reasonableness of the proposed scope or duration of the surveillance, and could grant renewals based on the success of an initial period of surveillance, rather than in 90-day blocks on a pro forma basis.211

These are merely some of the considerations which a judge should take into account in deciding whether it is reasonable to authorize installation of electronic surveillance equipment. This approach must inevitably be somewhat ad hoc, but we believe the judiciary must take some role more active than that suggested by the Butenko court if there is to be any meaningful protection for individual rights and any meaningful restraint on the Government's ability to abuse any power to wiretap to gather information "relating to" the conduct of foreign affairs. Nor should such a role in any way hamper the Government; in other contexts the judiciary has shown great deference to Executive judgments on foreign affairs matters, and we believe any errors on the part of the judiciary are likely to result in "unreasonable" searches rather than "unreasonable" denials of intelligence data.

Finally, we must observe that we do not now delineate the exact procedures the Executive must follow in securing warrants and preserving the records of electronic surveillance. Since we will indicate, in the next section of this opinion, that Congress intended the procedures and remedies of Title III to apply to all surveillance subjected by the courts to the warrant procedure,212 we do not consider what other protective standards, whether stricter or more permissive than those currently embodied in Title III,213 Congress could constitutionally provide for the conduct of surveillance in this area.

We have held that the electronic surveillances involved in this case were illegal because they were executed without a warrant. If this were a criminal case, as in Keith, we could end our inquiry here. However, this is a civil suit for damages, and both the measure of damages and the allowable defenses will turn on whether the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1970), apply in this case, or whether appellants are relegated to the remedies afforded under the seminal decision of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, supra, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619.214 Under the latter approach, only compensatory damages would be allowed, appellees could interpose a general "good faith" defense,215 and jurisdiction would be premised on 28 U.S.C. § 1331 (1970), which requires over a $10,000 amount in controversy, see, e. g., Sullivan v. Murphy, 156 U.S.App.D.C. 28, 50, 53, 478 F.2d 938, 960, 963, cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973); under a statutory theory, appellants could recover not only actual damages (with minimum liquidated damages computed at the rate of $100 per day for each day of violation), but also punitive damages and attorney's fees, and appellees could interpose only a narrow and specific good faith defense.216 This statutory remedy, however, is limited by 18 U.S.C. § 2520 (1970) to eavesdropping that is "in violation of this chapter (Title III)."217 We must therefore determine whether appellees' actions violated the statute as well as the Constitution.

Section 2511 of Title III declares that "(e)xcept as specifically provided in this chapter," interception of "any wire or oral communication" is illegal. In granting appellees' motion for summary judgment, Judge Pratt found as a matter of law that Title III "has no application and cannot be invoked with respect to electronic surveillances conducted pursuant to the President's national security powers." 363 F.Supp. at 943.218 This conclusion was predicated on the belief that it was mandated by Mr. Justice Powell's opinion in Keith. See id. at 942-943. However, although there is some apparent merit to Judge Pratt's position, we find that the opinion in Keith, which did not specifically address itself to the issue sub judice, offers only ambiguous guidance as to the proper resolution of our problem.

After noting the "comprehensive" nature of Title III, the Supreme Court in Keith addressed the Government's argument that Section 2511(3), the so-called "national security proviso" of Title III,219 was a congressional affirmation or recognition of presidential authority to conduct warrantless domestic security surveillances. See 407 U.S. at 302-303, 92 S.Ct. 2125. Rejecting that contention,220 the Court found the language of the Act to be "essentially neutral" and determined that "Congress simply left presidential powers where it found them." Id. at 303, 92 S.Ct. at 2130. "Congress only intended to make clear that the Act simply did not legislate with respect to national security surveillances." Id. at 306, 92 S.Ct. at 2131. Besides relying on the language and context of the proviso, the Court grounded its interpretation on the legislative history of Section 2511(3).221 Finally, opining that one "could hardly expect a clearer expression of congressional neutrality," and concluding that the floor debate on the section "explicitly indicates that nothing in § 2511(3) was intended to expand or to contract or to define whatever presidential surveillance powers existed in matters affecting the national security," id. at 308, 92 S.Ct. at 2132, the Court held that "the statute is not the measure of the executive authority asserted in this case." Id. (emphasis added). The Court thereupon proceeded to scrutinize the constitutional validity of warrantless electronic surveillance based on domestic threats to the national security. Having concluded that such warrantless surveillance was unconstitutional, the Court reiterated its earlier statements that "our decision (that a warrant was required does not) rest on the language of § 2511(3) or any other section of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. That Act does not attempt to define or delineate the powers of the President to meet domestic threats to the national security." Id. at 322, 92 S.Ct. at 2139.222

Although not necessitated by its decision, later in its opinion the Court indicated, as it had in upholding the warrant requirement in such prior cases as Camara v. Municipal Court, supra, that the standards and procedures under the warrant requirement need not be the same in all cases. Introducing this discussion, it specified that "we do not hold that the same type of standards and procedures prescribed by Title III are necessarily applicable to this case." 407 U.S. at 322, 92 S.Ct. at 2139 (emphasis added). Adumbrating some of the "potential distinctions between Title III criminal surveillances and those involving domestic security," id., the Court suggested that

Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. * * * It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of § 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court * * * and that the time and reporting requirements need not be so strict as those in § 2518.

The above paragraph does not, of course, attempt to guide the congressional judgment but rather to delineate the present scope of our own opinion. We do not attempt to detail the precise standards for domestic security warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.

Id. at 322-324, 92 S.Ct. at 2139.

In contrast to Judge Pratt, we believe these statements are susceptible of at least two alternative interpretations. To be sure, the Keith language could be interpreted as totally ousting Title III whenever national security surveillance is involved. The broad language early in the opinion could support that position, and the later discussion on warrant standards could be construed as indicating that although Title III requirements do not currently apply, Congress could regulate national security wiretaps if it so desired. Nevertheless, another interpretation of Keith would support the applicability of Title III in all cases where a warrant is required.

Under this latter interpretation, the early language of Keith223 would only refer to the question whether the Executive was free of the warrant requirement in conducting national security surveillance; the later discussion of warrant standards and procedures would be construed as indicating that although Title III requirements do currently apply where the President must comply with the warrant requirement, Congress could provide less rigorous procedures that would still be constitutionally acceptable. This interpretation is reinforced by the fact that the early discussion was written as a response to the Government's argument that Section 2511(3) affirmatively recognized and approved Executive power to conduct warrantless national security surveillances, which was the only question actually presented in Keith. The Court was not forced by the circumstances of that criminal prosecution224 to decide whether, given the constitutional requirement that a warrant be obtained for domestic security surveillance, it should be obtained in compliance with Title III.225 And although the Court ambiguously commented on that problem, it apparently deliberately cast the discussion in terms of "standards and procedures," see 407 U.S. at 322, 92 S.Ct. 2125, which are provided and available in Title III. This was in marked contrast to its discussion of the applicability of Title III to the warrant question, which was cast in terms of presidential "powers," as to which the Court found Congress had asserted its "neutrality."226

Since we do not believe the Keith case227 held the standards and procedures of Title III to be inapplicable when a purported national security surveillance is involved,228 we must look to the language and legislative history of Section 2511(3) to determine congressional intent in its enactment. Section 2511(1) unequivocally declares that "(e)xcept as specifically provided in this chapter," interception of "any wire or oral communication" is illegal.229 Section 2511(3), however, only states that "(n)othing contained in this chapter * * * shall limit the constitutional power of the President" to take the actions he deems necessary in the field of national security.230 Since Section 2511(3) is merely a disclaimer that "constitutional" actions by the President are not to be invalidated under the statute, it is reasonable to assume that Congress intended to prohibit "unconstitutional" Executive surveillance, which would therefore be "in violation of this chapter" within the comprehension of the damages provision of Title III.231 Thus, even if the procedures of Title III were inapplicable to national security wiretapping, the remedies of Title III should apply to unconstitutional exercises of presidential power.

An analysis of the legislative history of Title III also indicates that it would be reasonable to interpret Section 2511(3) as a statement that the question reserved in Katz232 should be left for judicial resolution, but that, to the extent the President does not have the constitutional power to engage in warrantless surveillance activities, the procedures and remedies of Title III are fully operative. This interpretation is fully consistent with the Keith Court's understanding of the legislative history of Section 2511(3) and the two-decade struggle in Congress concerning wiretap legislation.

In the colloquy between Senators McClellan, Holland, and Hart, which the Keith Court cited as the definitive statement of congressional intent in enacting Section 2511(3),233 it is interesting to focus on a paragraph the Keith Court considered crucial, but which it quoted only in part.234 Senator Hart, summarizing the interchange concerning Section 2511(3), stated:

(A)s I think our exchange makes clear, nothing in section 2511(3) even attempts to define the limits of the President's national security power under present law, which I have always found extremely vague, especially in domestic security threats, as opposed to threats from foreign powers. As I recall, in the recent Katz case, some of the Justices of the Supreme Court doubted that the President has any power at all under the Constitution to engage in tapping and bugging in national security cases without a court order. Section 2511(3) merely says that if the President has such a power (to tap and bug without a court order), then its exercise is in no way affected by title III.235

Moreover, the interchange had begun with Senator Hart's query as to whether the second sentence of Section 2511(3) was granting the President unlimited and readily abusable authority "in areas that do not come within our traditional notions of national security." 114 Cong.Rec. 14750 (1968). In particular, he was troubled by the fact that the statute might be interpreted as allowing the President to authorize installation of a wiretap on "an organization that is advocating the withholding of income tax payments," see id. at 14751,236 merely because the President believed such an organization posed a clear and present danger to the structure or existence of the Government. In effect, Senator Hart was inquiring as to the substantive scope of Section 2511(3), not what procedures would apply in areas covered by the proviso.237 In response, Senator Holland reassured him that the provision was "simply saying that nothing herein shall limit such power as the President has under the Constitution. If he does not have the power to do any specific thing, we need not be concerned." Id. (emphasis added).238

Given the otherwise comprehensive nature of Title III, we believe that the statements of Senators Hart and Holland indicate that Congress was primarily concerned with avoiding any legislative expression about an inherent Executive power to wiretap without a warrant, and the substantive scope of such a power if it in fact existed.239 It would thus appear that Congress merely intended that if the judiciary ascertained that the President had the constitutional power to wiretap without a warrant for certain purposes and in certain circumstances, the statute would not apply to them.240 That is, the applicability of the statute was contingent upon further judicial pronouncements, and the procedures and remedies of the statute were to completely occupy the wiretapping field except to the extent the President's powers were rendered constitutionally immune from the warrant procedure of the Fourth Amendment.

Moreover, this interpretation of the scope of Title III is particularly plausible in light of the ebb and flow of proposed legislation in the wiretapping field over the prior 20 years. As we indicated above,241 there was no constitutional prohibition against non-trespassory wiretapping until 1967, although Section 605 of the Federal Communications Act of 1934 prohibited use of evidence derived from such surveillance in criminal prosecutions. During this period, numerous bills were introduced in Congress to authorize wiretapping and use of any evidence and fruits obtained therefrom; however, they were all defeated because of bitter divisiveness over the question whether Congress should enact, as a statutory precondition to admissibility, a requirement that prior judicial approval be obtained for the surveillance.242 Passage of Title III came shortly after the Supreme Court handed down Katz v. United States, supra, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, which finally placed non-trespassory wiretapping and eavesdropping within the ambit of Fourth Amendment protection. Since Katz had reserved the question whether prior judicial authorization was a constitutionally mandated safeguard against unreasonable national security surveillance,243 it was reasonable for Congress to avoid that constitutional thicket until the Supreme Court spoke more fully on the President's asserted inherent power to conduct warrantless wiretapping in furtherance of his constitutional responsibilities. Indeed, the proviso probably was included merely to avoid a challenge to the statute as an unconstitutional limitation on Executive powers.244

Finally, there are strong policy considerations which guide us in our determination of congressional intent in enacting Title III. First, as Congress itself indicated,245 there is a policy in favor of providing fairly uniform standards to govern issuance of all wiretap authorizations. Second, there is the factor, to which we alluded earlier, that Title III will provide clear guidance to both courts and the Executive Branch concerning the procedures surrounding wiretap issuance, thus avoiding many of the problems attendant upon ad hoc future development in in camera proceedings.246 Third, we believe that the Title III procedures are salutary prophylactic measures designed to protect privacy interests while still accommodating the legitimate Executive need to conduct surveillance.

Title III provides, inter alia, for particularity in descriptions of the location of the wiretap,247 the type of communications sought to be intercepted,248 and the identity of the subject of the surveillance;249 for utilization of electronic surveillance only after alternative investigative procedures have been tried and failed or would be unlikely to succeed;250 for a statement to the judge of any previous applications for a warrant concerning the same persons, facilities, or places specified in the application, and the judicial action taken on those prior applications;251 for judicial authority to request additional supporting evidence for the warrant application;252 for maximum time limits on any surveillance, with provisions for renewals;253 for execution of the warrant as soon as practicable, and in a manner that minimizes interception of communications not the subject of the order;254 for judicial authority to request progress reports on the surveillance and the need for continued interception;255 for careful recording and "warehousing" of communications intercepted;256 for notification of the primary subjects of the surveillance that their conversations were intercepted, unless good cause is shown for not serving the inventory of specified information;257 for various procedures to safeguard the use of such intercepted communications;258 for the important safeguard of official reporting concerning the scope, nature, and extent of surveillance, whether approved or denied;259 and, of course, for civil damages for violations of the Title.260 Each of these provisions implements the important policies of the First and Fourth Amendments in the context of electronic surveillance;261 yet none is likely to inhibit or limit in any manner "the constitutional power of the President to take such measures as he deems necessary"262 in the national security area. They are procedures which, given the necessity that a warrant be obtained before a foreign security surveillance can commence, do not impose any substantial additional burden on the Executive Branch; indeed, they are the type of procedures which courts scrutinizing wiretap applications would probably develop in any event,263 but which Congress has conveniently promulgated for use on a uniform basis. We are thus of the opinion that Congress intended the procedures and remedies of Title III to apply to all Executive surveillance which, under the Constitution, must be initiated pursuant to judicial warrant.264

One caveat should, however, be appended to this conclusion. There are several provisions of Title III which, in the context of pure intelligence gathering activities, would frustrate the constitutional power of the President and which therefore cannot apply to such surveillance given the plain language and legislative history of Section 2511(3). Section 2516 authorizes the Attorney General to apply for a warrant to conduct surveillance in situations in which evidence of specified crimes is likely to be uncovered.265 And Section 2518(1)(b)(i) requires that the application make a detailed showing of the facts and circumstances upon which the applicant has formed his belief that those specified crimes have been, are being, or are about to be committed.266

Although most pure intelligence gathering surveillance could even be justified under these provisions, since specified crimes within the cognizance of Section 2516 will generally be engaged in by the subjects of the surveillance (and a statutory basis for the surveillance would thus be available),267 there will be the very rare instance268 in which no crime is involved. In these situations, in which adherence to the strictures of Title III would unduly trammel the inherent power of the President to conduct certain surveillances in furtherance of his constitutional duties, Section 2511(3) indicates that Congress intended that the provisions of Sections 2516 and 2518(1)(b)(i) would not limit presidential powers, although there is no reason to consider that Congress intended that the other procedural provisions of Title III, which do not substantially affect the conduct of such surveillance, would be ousted. In effect, this is to say that Section 2511(3), which explicitly acknowledges the foreign intelligence gathering function of the President, should be read to implicitly include intelligence gathering as a legitimate statutory subject of warranted surveillance under Section 2516, and to incorporate the corresponding constitutionally appropriate standard of probable cause as the required showing under Section 2518.

In light of our disposition of this case, the trial court on remand will have to decide some of the issues not previously reached because of the grant of appellees' motion for summary judgment.269 We believe, however, that that court should be accorded some guidance concerning the standard of good faith that should be applied as a statutory defense to the liquidated damages claim.

As originally enacted, Section 2520 provided that a "good faith reliance on a court order or on the provisions of section 2518(7) of this chapter shall constitute a complete defense to any civil or criminal action brought under this chapter."270 Although this clause was amended in 1970 to provide that a "good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law,"271 the amendment was not effective until after the second wiretap installation in this case had already been authorized.272 We do not pause to consider which of these two provisions should apply in this case, since we are of the belief that under a literal interpretation of either version, appellees would in effect be held strictly liable for their actions and could assert no good faith defense.273 However, we do not perceive the relevant standard of good faith in this case to be that literally specified in Section 2520; rather, we find that a good faith defense to liability, whether under the Bivens rationale or the statutory theory, will be established if appellees can demonstrate (1) that they had a subjective good faith belief that it was constitutional to install warrantless wiretaps under the circumstances of this case; and (2) that this belief was itself reasonable.274

As we indicated above, Congress intended that applicability of Title III procedures and remedies in the national security context be contingent upon further judicial pronouncements concerning the constitutional question reserved in Katz, since Section 2511(3) expressly declined to restrict "constitutional" Executive surveillance.275 But as the Supreme Court has observed, "(A) police officer is not charged with predicting the future course of constitutional law." Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967). See also Wood v. Strickland, --- U.S. ---, ---, 95 S.Ct. 992, 1000-1001, 43 L.Ed.2d 214 (February 25, 1975). Thus, in light of the fact that Congress made the applicability of Title III turn on the future course of constitutional law, as well as the fact that the legislative history and language of Title III are themselves somewhat ambiguous concerning the applicability of that chapter to national security surveillance,276 and considering the policy that statutes in derogation of the common law should be relatively strictly construed,277 we do not believe Congress intended to preclude a good faith defense that Executive officials acted under what they reasonably believed were the constitutionally inherent (and therefore statutorily exempt) powers of the President.278

In light of the expressed congressional intent not to disturb whatever inherent constitutional powers the President was found to possess, we doubt that Congress desired that a final judicial resolution of that complex and controversial issue would have to result in the extremes of either holding Title III totally inapplicable to national security surveillance or else holding Executive officials strictly liable for having erred in their assessment of the powers in fact constitutionally granted the President and thereby statutorily insulated from liquidated damages. Thus we hold that under the circumstances of this case,279 the proper statutory good faith defense is identical with the common law good faith defense that would apply to the Bivens cause of action.

We have carefully considered the opinions of Judges McGowan, Robb, and Wilkey which join us in holding that the warrantless surveillance in this case was illegal and gives rise to a cause of action.

Judge Wilkey confronts the question of whether the President had inherent constitutional authority to conduct such surveillance without a warrant, and concludes as we do that this was impermissible under the Fourth Amendment. We also agree with Judges MacKinnon and Wilkey that on the record as it stands there was an effort by the Executive to cope with the problem of national security thereby necessitating a resolution of that constitutional question.

Judges McGowan and Robb conclude as we do that the liquidated damages provision of Title III applies to this case. Insofar as they conclude that the constitutional question may be bypassed in reaching this determination, their opinions are apparently based on a view of the record different not only from ours but also from that of the District Court, and are premised, so far as the legal issues are concerned, on what is discerned from the language of the statute and the emanations they glean from the Keith opinion. The same sources lead Judge Wilkey to a different view of the meaning of the statute. In our opinion we have referred in greater detail to the legislative history, in order to ascertain the intent of Congress in passing the proviso, and we believe that Congress was defining the reach of the statute in terms of abstaining from any congressional enactment in those instances where the President had inherent constitutional authority to proceed with national security surveillance without a warrant. This is entirely in accord with Keith, which did reach and decide the constitutional issue as we do and which, being a criminal case did not address the question of the applicability of the remedial provision of Title III to instances of unconstitutional presidential surveillance.

Reversed and remanded for proceedings not inconsistent with this opinion.

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 wire-tapping 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 direct(ed) 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.

/s/ F. D. R.

OFFICE OF THE ATTORNEY GENERAL WASHINGTON, D. C.

July 17, 1946.

The President,

The White House.

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 these 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.

Respectfully yours,

/s/ TOM C. CLARK Attorney General

I concur.

/s/ HARRY S. TRUMAN

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 these 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 basic 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 mechanical 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

* * * Present practice, adopted in July 1965 in conformity with the policies declared by President Johnson on June 30, 1965 for the entire Federal establishment, prohibits the installation of listening devices in private areas (as well as the interception of telephone and other wire communications) in all instances other than those involving the collection of intelligence affecting the national security. The specific authorization of the Attorney General must be obtained in each instance when this exception is invoked. Intelligence data so collected will not be available for investigative or litigative purposes.

BAZELON, Chief Judge (concurring in part, dissenting in part):

My concern is with the Court's discussion of possible defenses available to John Mitchell and various former subordinates of his in the Federal Bureau of Investigation. While purporting to leave the question for another appeal, the Court has apparently determined to grant all these defendants a carte blanche mistake of law defense to the civil liability imposed by Title III.1 This important holding is not accompanied by any serious attempt to defend what must remain a significant extension of the isolated cases granting mistake of law defense. The purpose of this concurring opinion is to explain why I would hold that the subordinate FBI officials do have a defense of mistake of law drawn from established precedent and also hold that John Mitchell does not.

The Court relies on two arguments to support its erosion of the general rule that mistake of law is not a defense.2 The first argument is that such a defense is merely declarative of the common law, as the common law was itself declared in Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1347-48 (2d Cir. 1972). However, there is a severe distinction between the case sub judice and Bivens, a distinction central to the common law and which defeats the Court's argument. In Bivens, the issue pertained to whether the arresting3 officers had, if the true facts were as the officers believed them to be, probable cause or reasonable grounds to make the arrest. While Bivens is more than a little obscure on the issue, it appears that the court there would find the arrest justified if the officers had a reasonable belief (a standard seemingly equal to the standard of probable cause itself) that a crime had been committed and that the arrested person committed it.4 If this is the meaning of Bivens, it is indeed declarative of the mature position of the common law.5 The distinction of our case here is that even if the facts were as the defendants supposed them to be, the search could not be justified as within the law's intention. The reason for this conclusion is that the search here was conducted for an extensive period without a warrant and is outside of the "exigent circumstances" exception to the warrant requirement.6 The Court today holds and I concur completely that a warrant is required to justify searches of this ilk. The defendants mistakenly believed that no warrant was required. This belief was not based on a misapprehension of salient facts but on an erroneous concept of law that the Fourth Amendment did not require a warrant in so-called "national security" circumstances.

This distinction between the two cases is sensible to the common law which makes a consistent distinction between mistakes of fact and law.7 The distinction is reflected in the law of arrest and false imprisonment. If an officer apprehends an individual on the basis of facts which if true would not constitute an offense known to the law, or on the basis of a warrant suffering from the same defect, that officer is liable in an action for false imprisonment.8 His good faith or reasonable belief that the facts did constitute an offense is not a defense. Such was the harsh principle of the common law. The actions of Mitchell and the other defendants fall clearly within this principle they are mistakes of law concerning the necessity of a search warrant. Unless we are willing to erode the common law principle, there can be no mistake of law defense in the statutory "false arrest" cause of action established by 18 U.S.C. § 2520 (1970), which is, of course the subject of the instant litigation.9

The Court's second argument is that Congress intended application of the § 2520 cause of action to depend on the "future course of constitutional law" and under Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), a police officer is not to be held liable for a mistaken prediction as to the course of constitutional law. But Pierson v. Ray involved police actions premised on a state statute later declared to be unconstitutional and not police actions premised on their own view as to the correct constitutional command.10 This distinction also informs the common law approach to the problems of arrest and false imprisonment: an arrest made in bona fide reliance on an existing ordinance or state statute is prima facie justified. Here we consider law enforcement actions not taken in reliance on an existing legislative action but rather in reliance on the official's own interpretation of the law.11 The mistake is thus not as to the future course of constitutional law but as to its present command untrammelled by a contrary legislative judgment. The mistake is one of pure law and must be justified, if at all, on that basis and not by reliance on the Pierson principle.

Wood v. Strickland, --- U.S. ---, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) adds little to the court's argument. In ruling on a sovereign immunity claim, the Court indicated that no immunity existed for violation of a student">student's constitutional rights when the violation was caused by "ignorance or disregard of settled, indisputable law . . . ." Id at 1000. This ruling certainly recognizes the force of the rule that mistakes of law do not excuse, as the dissent clearly points up. Its reference to "settled, indisputable law" is made in the context of actions of school board members who did not have available a means for ascertaining any questions of constitutional interpretation that might arise, a means which would insure against liability. The Court's treatment of Pierson is explicitly limited to that case's factual predicate actions taken under a statute later declared to be unconstitutional. Wood v. Strickland does not support the court's decision here.

To be sure, Pierson involves a limited erosion of the general rule that mistakes of law do not constitute a defense. We may certainly use the principle of that case to make further limited intrusion into the general rule. I recently had occasion to express my views on the proper mode of analysis of this question in United States v. Barker, --- U.S.App.D.C. ---, 514 F.2d 208 (1975) (Bazelon, C. J. concurring). The holding of that opinion controls the claim of the various subordinate FBI officials and mandates my conclusion that those defendants do have a cognizable mistake of law defense to their actions.12

But I do not perceive how any limited erosion of mistake of law doctrine can produce a defense for John Mitchell. He has made the most pure mistake of law imaginable. He relied on no legislative judgment that his actions were permissible or constitutional. He relied on no superior orders or any form of authorization. Furthermore, the reason of the mistake of law rule is surely served by imposition of liability. While I will assume for purposes of this decision that one could make a reasonable constitutional judgment that a warrant was not required in so-called "national security" circumstances,13 it is equally clear that every informed official and certainly the chief law enforcement officer of the Nation would be aware that the matter was not yet settled. Yet no attempt was made to bring this disputed matter to the courts which are given the ultimate task of saying what the law is. The procedure for obtaining such a judicial determination was available to Mr. Mitchell.14 Under these circumstances and with the rights of American citizens in the balance, it was incumbent upon Mr. Mitchell to find out what the law was, to call to his conscience whether his actions agreed with the constitutional order. When thus viewed, Mitchell's actions fall directly within the intendment of the rule against mistakes of law: both to assert the primacy of the legislature and the judiciary in the making of law within their constitutional powers and to assert the duty of all citizens to know that law and obey it.15 Former Justice Griffith of the Supreme Court of Mississippi instructs us on the point:16

When a person has been chosen to the high position of sheriff and has assumed the duties thereof which in actual execution so largely deal with the liberties of the people, it will be naturally supposed that he has taken some pains to acquaint himself with the power and authority conferred upon him by law in relation to arrests, and with the limitations thereon as laid down by the law. And when an arrest has been made by him and his deputy, and an imprisonment imposed, and the facts admitted by him show no legal grounds whatever therefor, as is the case here, the jury should be permitted to say whether the conduct of the officers has been characterized by such gross wrong as to evince a wanton or willful disregard of the rights of others, and, if so, to administer a corrective by way of smart money.

The short of the matter is that the Court has by its action permitted the Executive Branch to make constitutional law and intends to overrule that Executive Branch determination only prospectively. I understand the Court in footnote 267 mandates the District Court to consider whether it would have been unreasonable for Mitchell not to have sought a judicial determination of his authority to wiretap without a warrant in so-called "national security" circumstances. But how is the District Court to give proper consideration to the issue? Whether such an action is "reasonable" or "unreasonable" is merely a question of law, viz. should Mitchell's erroneous view of the law be excused. This is in turn a simple restatement of issue of the case: should the general rule that mistake of law is not a defense prevail or should it be eroded. Since the body of the Court's discussion is directed to a proof that a mistake of law should be permitted, if a true national security purpose motivated the taps, the District Court may well find itself more than a little confused.

I recognize that the rule that mistakes of law are not a defense is a harsh rule. Perhaps serious arguments could be presented that it should be abandoned in toto. I might well agree with such arguments. But the Court here neither purports to abandon the rule nor explains why this case is any different from the mass of cases in which mistakes of law have been found to be no justification for illegal activity. I would have trouble enough with a wholesale abandonment of the rule since I do not think the law develops in that manner.17 More serious in my mind, however, is the Court's apparent selective administration of this harsh rule. For these reasons, I dissent from that portion of the Court's opinion which purports to permit a cognizable defense for John Mitchell to this civil action.

McGOWAN, Circuit Judge (concurring in the judgment):

Believing, as I do, that this record presents no situation falling within the Congressional disclaimer of any purpose to limit "the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities," I have no occasion to look beyond the statute in order to reach the result reflected in the judgment.

Title III, in which the foregoing proviso appears, is a part of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 a statute which the Supreme Court characterized in Keith as "a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression." 407 U.S. at 302, 92 S.Ct. at 2129. This case, like Keith, "raises no constitutional challenge to electronic surveillance as specifically authorized by Title III . . .," nor, as the Supreme Court went on to say, "is there any question or doubt as to the necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest," as that interest is defined in the proviso. Id. at 308, 92 S.Ct. at 2132.

Title III is addressed to law enforcement, which embraces the detection, prosecution, and prevention of crime. That, in my reading of the record, is what this case is about. Nowhere is that clearer than in the representations of the State Department that initiated the surveillance in question.

Those representations began on June 30, 1970 with a communication from the State Department to the FBI. The State Department official making that communication referred to having received the intra-departmental memorandum attached thereto "with a request that it be brought to the attention of federal law-enforcement authorities," and concluded with an assurance that "the Department will be most grateful for anything you can do to assist us with this problem." Exhibit B-1(1). The record includes at that point a protest from the Soviet Union to the State Department complaining of JDL activities that "cannot be qualified as anything but criminal," and insisting that appropriate law enforcement steps be taken. Exhibit B-1(3). The memorandum attached to the June 30 communication was an internal State Department document which reads as follows:

The recent JDL raid on the Amtorg office in New York City is only the latest in a series of incidents which is causing increasing concern to the office of Soviet Union Affairs. I need not recount previous JDL-inspired actions as they are known to you.

I should like to note, however, that such JDL activity is beginning to have a negative effect on the conduct of our relations with the USSR: this has been noticeable in the area of cultural exchanges. In addition, the JDL's resort to physical violence during its raid on the Amtorg office raises the possibility of Soviet retaliation against U.S. Embassy personnel in Moscow. Finally, it seems to me that the JDL is an organization of legitimate concern to Federal law-enforcement authorities, in view of the organization's activities in various parts of the United States. (Emphasis supplied).I would be grateful if you could bring our views to the attention of these law-enforcement authorities for whatever action they deem appropriate.

Exhibit B-1(2).

The law enforcement actions taken in response to that request resulted in a letter of February 10, 1971 from the Under Secretary of State to the Attorney General, of which the first paragraph is as follows:

All of us in the Department were pleased with the prompt action by the Federal Grand Jury which is currently investigating acts of violence attributed to the militant Jewish Defense League. We are hopeful that the return of indictments and resulting prosecutions under Federal statutes will demonstrate to JDL members and sympathizers, as well as to the American public and the international community, the resolve of the United States Government not to tolerate unlawful attacks upon official and commercial representatives of foreign governments. More fundamentally, we believe that the deterrent effect of such prosecutions upon violent anti-Soviet acts will measurably improve the ability of the United States to deal with the Soviet Union on substantive foreign policy issues such as those with which JDL leaders have expressed concern. (Emphasis supplied).

Exhibit B-1(5).

It thus appears that what the State Department sought was more effective enforcement of the criminal laws, and that such law enforcement was, in its opinion, the way to minimize the harmful effect of the activities of the Jewish Defense League upon the relations of the United States and the Soviet Union.

It was not the State Department, but rather the FBI that significantly shifted the emphasis away from criminal law enforcement alone in its request to the Attorney General for authority to tap the telephone of the JDL headquarters for the purpose of obtaining advance knowledge of JDL activities generally so as to "allow for adequate countermeasures to be taken." This was a reason stated in justification for its request for wire tap authority in the memorandum of the Director of the FBI to the Attorney General on September 14, 1970, and it was the reason which was repeated in the two successive memoranda asking renewal of that authority.1

However, this new and broader objective conceived by the FBI and the Department of Justice seems to me no less a law enforcement purpose than that of the State Department. At best it might be said that the threatened crimes in this case were of a kind that the FBI would have greatly preferred by the provision of security and by other precautionary steps to prevent rather than prosecute, but I cannot see why this generally laudable preference should make the difference.2 The effort to prevent crime can always fail, in which case prosecution is sure to follow.3

I disagree, therefore, with Judge Wilkey's assertion that the primary purpose of this surveillance, viewed from the perspective of either the State Department or the Justice Department, was something other than the "uncovering of evidence of domestic crime."4 I disagree more fundamentally, however, with his suggestion that the "primary purpose" of a surveillance is the proper test of the statute's applicability.5

An investigation may often have both prosecutorial and informational purposes. Different investigators may have different understandings of which of these is "primary." At least at the outset, no conscious view may have been formed at all as to what is the investigation's "primary purpose," since no one can be sure of where it will lead. Even if a concerted and discrete "primary purpose" may sometimes exist in the minds of investigators, the task of proving or disproving it in later judicial proceedings is likely to be frustrating if not entirely futile. Moreover, a subjective test, such as Judge Wilkey suggests, invites the Government to supply national security purposes after the fact; and, to the extent it is successful, permits it to ignore a statute avowedly protective of important individual rights.6

My preference would be for a more objective test of the statute's applicability, and one which allowed it to be much less easily displaced.7 For present purposes, it is enough that that section was not intended to apply when the subjects of surveillance are themselves so indirectly related to any foreign power. Note should be taken of the exact language of § 2511(3). It does not say that the statute is inapplicable to any surveillance with implications, however remote, for the nation's foreign relations; it merely abjures any intent to legislate with respect to the constitutional power of the President (in pertinent part)

. . . to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, 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 nonstatutory surveillances here at issue must be defended as being "necessary to protect the Nation against . . . hostile acts of a foreign power." I would construe the quoted phrase as referring only to surveillances directed against agents of, or collaborators with, the foreign power whose hostile acts are feared. It was with such agents and collaborators that Congress was, in my submission, specifically concerned.8 I see strong reasons not to construe the language more broadly.

In cases, such as the one before us, where the national security concern is purely that a foreign power might be provoked into hostile acts by the activity of the subjects of surveillance, none of the policies arguably underlying the national security exception to the statute are operative. A heightened necessity of secrecy is sometimes thought to distinguish national security surveillances, but there is nothing secret about what the JDL was up to, or the reasons that it was thought dangerous, or even the fact that members of that organization were under close investigation.9 There is also sometimes thought to be a lack of judicial competence to deal with national security matters, but there was nothing in the least arcane about JDL activities and their implications. It may well be that the conduct of our foreign affairs is better left to the State Department than to the judiciary, but foreign affairs entered this case only because foreign citizens were the victims of actual and threatened criminal offenses, and, as has already been made clear, the only expressed concern of the State Department was that those offenses be averted or prosecuted.

A holding that the President may protect against "hostile acts of a foreign power" by spying upon our own citizens simply because they may provoke such acts opens a gaping and particularly dangerous hole in the statute. The following come quickly to mind as among those who would be subject to non-statutory10 surveillance under this theory: a Congressional opponent of detente, on the ground that it must be known in advance when he will take some action to unsettle delicate trade negotiations; leakers of confidential information, on the ground that they will destroy the trust and candor of communications with our allies; organized resistors of American military actions, on the ground that they demoralize the troops and incite the enemy; multinational corporations, on the ground that violations of the law by such corporations are a major cause of foreign ill-will; suspected perpetrators of any crime that can become an "international incident" (the smuggling of an art treasure out of a foreign country, the smuggling into it of large amounts of narcotics, etc.).

The foregoing list is only intended to be suggestive, but what it says to me is that, where the activities under Government surveillance are foreign-related only by way of the foreign reaction they may provoke, those activities are likely to be either criminal, in which case the Government should submit to Congress's decision that only certain crimes pose a sufficient threat to justify surveillance, or protected by the First Amendment, in which case there should ordinarily be no surveillance. After all, if domestic activities, without being unlawful, are such as to attract the attention of a foreign power, they are bound to be of a political or at least self-expressive nature.

Such First Amendment concerns are, of course, vividly illustrated by the facts of this case. The first paragraph of Mr. Hoover's initial memorandum requesting wiretap authority is as follows:

The captioned organization has recently emerged as the most militant pro-Jewish organization active in the United States. It has demonstrated its proclivity for demonstrations and violence by attacks on Soviet and Arab diplomatic installations in this country, as well as by participation in demonstrations in New York City, which have resulted in injury to private citizens and law enforcement officers. News media have reported that the leader of the Jewish Defense League (JDL) on September 8, 1970, stated that his organization might attempt to hijack Arab terrorist groups in the current tensions surrounding the Middle East situation.

It will be seen that the reference is both to "demonstrations," and to violent attacks on people and property, as well as threats of airline hijacking. In the second paragraph of that memorandum, the Director refers to the impending opportunity of the JDL "for violence or demonstrations against the foreign leaders in furtherance of JDL aims for support for Israel and the Jewish race." The tell-tale "or" is surely not without significance. The duality of these expressions is subtle and perhaps below the level of consciousness, but its consequences can be substantial. It leads, in the Government's present submission, to the legal conclusion that the warrant requirements of Title III need not be observed, which in turn means that the FBI can, without constraint from the statute, add to its stores of information about people who demonstrate, as well as those who have committed, or may reasonably be thought likely to commit, crimes.

This, in my conception, was exactly what Title III was designed to prevent. It is why law enforcement authorities should not, by an expansive reading of the foreign intelligence proviso, convert requests for more effective enforcement of the criminal laws into opportunities for warrantless invasions of privacy, especially where, as here, those whose privacy is invaded have no affinity with the foreign power whose hostile acts are the Government's professed concern.11

Judge Wright's discussion of the general problem of whether there should be a foreign security exception to the constitutional warrant requirement, though a scholarly effort of extraordinary proportions, seems to me unnecessary.12 Moreover, unreserved concurrence in it could only, or so it seems to me, be understood as signifying a personal conviction that no such exception exists. We may or may not ultimately so hold, but the complexity and importance of the problem require that we address it only in our most sure-footed way, that is to say, on the concrete facts of a case presenting the issue squarely.

If and when we are called upon to decide that question, our task may be greatly complicated by our having held today that, wherever the Constitution requires a warrant, the statute requires compliance with some, albeit concededly not all, of its mandated procedures. That holding, in my view, flies in the face of both the Supreme Court's Keith opinion and the statute itself.

As to the former, the plain meaning of the language of Keith seems to me to be that there are certain national security surveillances to which the statute was not intended to apply, and that the surveillance then before the Court was one of them.13 It is perhaps possible to read the Court's phrase, "did not legislate," as "legislated contingent upon the Constitution." It is possible also to conclude that when the Court stated later in its Keith opinion that perhaps Congress "would judge" the statutory procedures inapplicable to national security surveillance, 407 U.S. at 323, 92 S.Ct. 2125, it meant that perhaps Congress "would reconsider" their applicability. Even if these possible meanings commended themselves to us as the more sensible ones,14 our obligation is to remain faithful to the Court's most probable meaning in Keith, and I cannot believe that that meaning is one which can only be derived by the employment of as much ingenuity as Judge Wright has shown.

Far more important, since the statements in Keith are dicta in any event, is the statute itself. To the textual and historical arguments that Judge Wilkey has quite forcefully made against the statute's applicability to all surveillances requiring a warrant, I will add only this. Judge Wright has somewhat understated the number of procedural provisions in the statute which will have to be altered or ignored before they are applied to non-criminal national security surveillances. He mentions, as calling for this treatment, § 2516, enumerating the criminal offenses which may form the justification for surveillance, and § 2518(1)(b)(i), requiring the applicant for a warrant to give details of the offense.15 There are also the following:

§ 2518(1)(b)(iv), requiring the warrant applicant to give "the identity of the person, if known, committing the offense . . .; "

§ 2518(3), allowing the judge to issue a warrant only if

(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;

(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;

(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.

§ 2518(4)(c), requiring that the warrant itself contain ". . . a statement of the particular offense to which it relates; "

and § 2519(1)(e), requiring the judge to report to the Administrative Office of the United States Courts, within thirty days of a surveillance's termination or denial, "the offense specified in the order or application."

The criminal "offense" is thus pervasively assumed in §§ 2518 and 2519. It is the linchpin of the operation of those sections, giving strong reason to doubt that they were intended to be applied, as Judge Wright would apply them, where there is no offense at all.16

I concur in the result and in Part III B of Judge Wright's opinion.

The Jewish Defense League is a domestic organization. Its members are citizens of the United States and there is no suggestion of any connection or collaboration between the League or its members and any foreign power or foreign agent or agency. In my opinion therefore the electronic surveillance of the League and its members cannot be justified under the proviso of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2511(3), which recognizes "the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities." I think that proviso, and the constitutional power of the President to which it refers, relate to the activities of foreign powers and their agents, not to those of American citizens having no foreign connections. In short, I think the case is controlled in principle by United States v. United States District Court (Keith), 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), so that before installing the wiretaps in question the government was required to obtain a warrant pursuant to the procedures established by Title III, 18 U.S.C. §§ 2510-2519.

I reject the argument that the surveillance was proper because the activities of the Jewish Defense League displeased a foreign government or related to foreign affairs. Carried to its logical conclusion that argument would reduce the restrictions on warrantless wiretapping to the vanishing point, for the actions of almost any group or organization in this country, even such a body as the convention of one of our major political parties, may affect foreign policy or agitate a foreign nation.

The government's position cannot be sustained by the second proviso of 18 U.S.C. § 2511(3) or by the constitutional power of the President to which it refers. That proviso recognizes a power of the President "to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government." Any contention that the activities of the Jewish Defense League threatened the overthrow of the government or presented a clear and present danger to its structure or existence is, I think, chimerical. Whatever the constitutional prerogatives of the President in the field of national security may be, the facts of this case do not justify their invocation. On this point the Keith case is conclusive.

The violence directed at Soviet personnel by the League, including the bombing of Soviet installations, justified an application under 28 U.S.C. § 2518 for an order authorizing a tap on the League's telephones. Thus 18 U.S.C. § 112(a) makes it a felony to assault, strike, wound, or offer violence to a foreign official or official guest. Any person who uses an explosive to commit that felony is subject to imprisonment for not less than one year nor more than ten years. 18 U.S.C. § 844(h). Moreover chapter 102 of the Criminal Code, 18 U.S.C. §§ 2101-2102, relating to riots, would seem to apply to at least some of the concerted activities of the League's members. Turning to Title III, we find that 18 U.S.C. § 2516(1)(c) specifically authorizes an application for a wiretap warrant in cases involving unlawful use of an explosive to commit a felony; and 18 U.S.C. § 2516(1)(a) authorizes such an application in cases involving riots. Granted that the Congress may not by statute impinge upon the constitutional prerogatives of the President in the field of foreign affairs or the national security, I think the surveillance in this case related to domestic crimes specifically covered by Title III and not to matters the Constitution may confide to the President's discretion in dealing with foreign nations or the national security. The interest of a foreign government in violations of our criminal laws by American citizens did not remove the coverage of Title III.

WILKEY, Circuit Judge (concurring and dissenting):*

I concur in the plurality's finding that the wiretaps on the Jewish Defense League were placed pursuant to the President's "foreign affairs" power, and also in the holding that the warrantless surveillance nevertheless was in violation of the Fourth Amendment. If a "foreign affairs" exemption from the warrant requirement exists, it exists only for a narrow category of wiretaps on foreign agents or collaborators with a foreign power. As this is not such a case, we leave for another time resolution of the question of the existence and precise parameters of this special constitutional exemption.

I must strongly dissent, however, from my colleagues' startling conclusion that all constitutionally objectionable wiretaps are perforce in violation of Title III and that, therefore, the statutory damages provision of section 2520 is applicable to this case. In my view, the case should be remanded to the District Court solely for consideration of the merits of a claim for damages under the Fourth Amendment.1

The appellants' claim of damages for an unlawful search and seizure rests on both statutory and constitutional grounds. The constitutional claim will be discussed in Part II of this opinion. Part I examines the alternative prayer under section 2520 of the Omnibus Crime Control and Safe Streets Act. That section provides for the recovery of civil damages by those "person(s) whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter (i. e., Title III of the Act, 18 U.S.C. §§ 2510-2520)."2 The pivotal issue under the claim for statutory (as distinct from constitutional) damages, then, is whether the appellees violated any provision of Title III when they placed wiretaps on the phones of the Jewish Defense League (JDL) without any prior judicial approval. Resolution of this issue depends, first, upon whether the wiretaps were placed pursuant to a "foreign affairs" surveillance and, second, upon whether the strict procedural requirements of Title III have any application to this kind of surveillance.

A. The Scope of a "Foreign Affairs" Surveillance

Title III of the Omnibus Crime Control and Safe Streets Act3 authorizes the use of electronic surveillance for the classes of crimes set forth in section 2516. Sections 2511 and 2520 provide criminal and civil penalties for violations of the Act. Section 2511, however, also specifies several categories of conduct which are either not unlawful or are not regulated by the Act. One such category is defined in subsection (3) which provides in pertinent part:

Nothing contained in this chapter . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. 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.4

According to the Senate Report of the Act,5 the section 2511(3) disclaimer was intended "to reflect a distinction between the administration of domestic criminal legislation (by the President) . . . and the conduct of foreign affairs."6 In the latter area, as the disclaimer itself reads, Title III does not "limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power . . . "7

The appellants in this case apparently would construe this language to allow the President freedom of action in intelligence gathering only when the country was actually exposed to an armed attack. Neither of the principal reasons given by the Government for conducting the wiretaps in question (1) the severe strain which the activities of the JDL placed on the conduct of our relations with the U.S.S.R.; (2) the threat of retaliation by Soviet citizens against American Embassy personnel in Moscow involved a serious danger of war with the Soviet Union. It follows, appellants argue, that the Executive was not justified in treating the conduct of this wiretap differently from an ordinary criminal wiretap.

The appellants' position is refuted by both the language of the disclaimer itself and by the function which the surveillance served. In the first place, section 2511(3) preserves the President's authority to protect the nation not only against "actual or potential attack" but also against "other hostile acts" of a foreign country. That this disjunctive wording was intentional is made clear by the Senate Report, which explains that the President's authority is unfettered by Title III "to obtain information by whatever means to protect the United States from the acts of a foreign power including actual or potential attack or foreign intelligence activities."8 "Hostile acts of a foreign power," therefore, is clearly a category which includes armed aggression against this country only as one of its components. It would certainly appear, then, that the prevention of an attack on American citizens abroad also fits within that broader category. It is difficult to conceive of a more appropriate situation for utilization of the President's foreign affairs power than in the protection of American Embassy personnel in another country.

Equally important, in view of the responsibility of the Executive to conduct our foreign relations, and the intent of Congress in section 2511(3) to recognize the informational requirements which inhere in the proper exercise of this responsibility,9 the purview of the term "hostile acts" would also appear to include inimical diplomatic retaliation. That the well-being of this country can suffer greatly from a breakdown of friendly relations with a country like the Soviet Union is beyond question. If the President has any special investigative prerogative by virtue of his foreign affairs power, it must include a situation where a rupture of diplomatic ties is threatened.

This position is buttressed by the conduct of the surveillance in question. The function which the surveillance was intended to serve was not primarily one of uncovering evidence of domestic crime. Rather, the purpose was to acquire advance knowledge of the tactics of physical intimidation and harassment practiced by the JDL on Russian diplomatic personnel in this country with the avowed design of "creat(ing) a crisis between the U.S. and the U.S.S.R."10 in order to minimize the disruptive effect of these activities on our relations with the Soviet Union. This was an informational surveillance of the type Congress intended to separate from ordinary criminal wiretaps by virtue of the section 2511(3) disclaimer. It was an intelligence operation undertaken pursuant to the President's constitutional power to conduct this country's foreign affairs, as distinct from his duty to administer domestic criminal legislation.11

Thus, I concur in the plurality's determination that the wiretaps in question were placed pursuant to the President's special responsibility to conduct the country's foreign affairs, within the meaning of the section 2511(3) disclaimer. This does not mean the surveillance was immune from minimal constitutional requirements. Part II below elaborates my agreement with the plurality on this point. To my mind, however, it is clear that if a particular surveillance falls into the category of foreign affairs, as in this case or domestic security, as in United States v. United States District Court (Keith),12 its validity is subject only to constitutional strictures.13 I strongly disagree with the plurality's view that the strict procedural requirements of Title III and, concomitantly, the damages provision contained in section 2520 are applicable to these special kinds of surveillance.

B. The Meaning of the Section 2511(3) Disclaimer

In Keith, the Supreme Court was called upon to interpret the significance of the section 2511(3) disclaimer as it related to Presidential authority to gather intelligence information concerning the internal security of the country. The Court found "the conclusion inescapable that Congress only intended to make clear that the Act simply did not legislate with respect to national security surveillances."14 For Congress to have dealt with "the important and complex area of national security in a single brief and nebulous paragraph . . . would not comport with the sensitivity of the problem involved or with the extraordinary care Congress exercised in drafting other sections of the Act."15

This rationale would appear to apply with even greater force to a case involving intelligence gathering concerning the external security of the country. It has long been recognized that the President has special constitutional responsibilities and prerogatives in the field of foreign affairs.16 Congress intended to respect those prerogatives by virtue of section 2511(3). "Few would doubt this, as the section refers among other things to protection 'against actual or potential attack or other hostile acts of a foreign power.' "17 Moreover, the factors which differentiate auditory searches for evidence of a specific crime from information-gathering surveillances are particularly applicable to foreign intelligence operations. Often the uncovering of evidence of criminal activity is only a secondary objective. The primary objective is to obtain intelligence upon which the President can base an informed judgment in the area of foreign affairs.

The rigid procedural requirements of Title III and the substantive necessity of a prior showing of probable cause to suspect criminal activity are not geared toward this kind of informational surveillance. That Congress recognized and intended to point up this limitation on the reach of Title III is made quite clear by the discussion of the rationale for section 2511(3) contained in the Senate's Report of the Act. Its direct relevance to this and other issues involved in the case at bar merits an extended quote:

Paragraph (3) is intended to reflect a distinction between the administration of domestic criminal legislation not constituting a danger to the structure or existence of the Government and the conduct of foreign affairs. It makes it clear that nothing in the proposed chapter or other act amended by the proposed legislation is intended to limit the power of the President to obtain information by whatever means to protect the United States from the acts of a foreign power including actual or potential attack or foreign intelligence activities, or any other danger to the structure or existence of the Government. Where foreign affairs and internal security are involved, the proposed system of court ordered electronic surveillance envisioned for the administration of domestic criminal legislation is not intended necessarily to be applicable. The two areas may, however, overlap. Even though their activities take place within the United States, the domestic Communist party and its front groups remain instruments of the foreign policy of a foreign power (Communist Party, U. S. A. v. Subversive Activities Control Board, 81 S.Ct. 1357, 367 U.S. 1 (6 L.Ed.2d 625) (1961)). Consequently, they fall within the field of foreign affairs and outside the scope of the proposed chapter. Yet, their activities may involve violations of domestic criminal legislation. See Abel v. United States, 80 S.Ct. 683, 362 U.S. 217 (4 L.Ed.2d 668) (1960). These provisions of the proposed chapter regarding national and internal security thus provide that the contents of any wire or oral communication intercepted by the authority of the President may be received into evidence in any judicial trial or administrative hearing. Otherwise, individuals seeking the overthrow of the Government, including agents of foreign powers and those who cooperate with them, could not be held legally accountable when evidence of their unlawful activity was uncovered incident to the exercise of this power by the President. The only limitations recognized on this use is that the interceptions be deemed reasonable based on an ad hoc judgment taking into consideration all of the facts and circumstances of the individual case, which is but the test of the Constitution itself (Carroll v. United States, 45 S.Ct. 280, 267 U.S. 132 (69 L.Ed. 543) (1925)). The possibility that a judicial authorization for the interception could or could not have been obtained under the proposed chapter would be only one factor in such a judgment. No preference should be given to either alternative, since this would tend to limit the very power that this provision recognizes is not to be deemed disturbed.18

This language provides strong support for the view that Congress intended a surveillance which falls "within the field of foreign affairs" to be "outside the scope of (Title III)." Most decisively, because it was apparent to Congress that such surveillances would not be authorized or conducted in the same fashion as ordinary criminal wiretaps, the third and last sentence of the section 2511(3) disclaimer specially provides for evidence of domestic crime which is incidentally uncovered during a foreign intelligence operation to be admissible in court, notwithstanding the fact that Title III procedures were not followed. (The only requirement is that the surveillance have met minimal constitutional standards of reasonableness.) If Title III's provisions do not extend to "foreign affairs" intelligence gathering, it would appear quite clear that the Executive's failure to conduct a surveillance in accordance with those provisions is not in violation of the Act; therefore, the damages provision of section 2520 is inapplicable.

Confronted with the Supreme Court's unqualified interpretation of the section 2511(3) disclaimer in Keith, and the Senate's clear explanation of the section's meaning in its report, Judge Wright, for the plurality, nevertheless argues that Title III is applicable to this case. First, he suggests a reading of Keith under which the Supreme Court's view that Congress in Title III "did not legislate" with respect to the kinds of surveillances treated in section 2511(3) would only refer to the question whether the Executive was free of the warrant requirement in conducting such surveillance.19 Second he argues that the Court's discussion of possible standards and procedures for national security surveillances should be construed as indicating that Title III requirements are controlling in all cases where prior judicial approval is required, but Congress might choose to provide less rigorous procedures that would still be constitutionally acceptable.20 Third, he takes the position, in a footnote, that the explanatory statement in the Senate Report is "not inconsistent" with the plurality's interpretation of section 2511.21

The difficulty with Judge Wright's first argument is illustrated by the following language from Keith:

The express grant of authority to conduct surveillances is found in § 2516, which authorizes the Attorney General to make application to a federal judge when surveillance may provide evidence of certain offenses. These offenses are described with meticulous care and specificity.

Where the Act authorizes surveillance, the procedure to be followed is specified in § 2518. Subsection (1) thereof requires application to a judge of competent jurisdiction for a prior order of approval, and states in detail the information required in such application. (Cite) Subsection (3) prescribes the necessary elements of probable cause which the judge must find before issuing an order authorizing an interception. Subsection (4) sets forth the required contents of such an order. Subsection (5) sets strict time limits on an order. Provision is made in subsection (7) for "an emergency situation" . . ..

In view of these and other interrelated provisions delineating permissible interceptions of particular criminal activity upon carefully specified conditions, it would have been incongruous for Congress to have legislated with respect to the important and complex area of national security in a single brief and nebulous paragraph. This would not comport with the sensitivity of the problem involved or with the extraordinary care Congress exercised in drafting other sections of the Act. We therefore think the conclusion inescapable that Congress only intended to make clear that the Act simply did not legislate with respect to national security surveillances. (Cite)22

Only the most tenuous argument can be made, in the face of this language, that the Supreme Court's position in Keith was that the procedures of Title III perforce apply to all surveillances, except for those in which no warrant is constitutionally required. If this were the case, the objects of the surveillance in Keith themselves would have been eligible to recover statutory damages. That there is no intimation of this possibility in the Court's opinion is certainly not surprising, for the Court clearly was of the view that the procedural requirements of the Act were never intended to apply to national security surveillances. It was "incongruous" to think that Congress legislated procedures for such surveillances "in a single brief and nebulous paragraph," especially in view of the care Congress had given in the rest of the act to laying down precise standards for ordinary criminal surveillances. Recognizing that these "interrelated provisions delineating permissible interceptions of particular criminal activity upon carefully specified conditions" should not be applied to national security or foreign affairs surveillances, the Congress in section 2511(3) made clear that the Act "simply did not legislate" with respect to such operations.

Any doubt as to the Supreme Court's position contrary to the plurality's second argument is dispelled at the end of the opinion by the Court's suggestions for other possible statutory standards and procedures to govern domestic security surveillance.23 Although it had ruled that the warrant requirement of the Fourth Amendment was applicable to such surveillance, the Court made clear that the same type of procedures required in Title III for ordinary criminal wiretaps would not be constitutionally required for those kinds of operations specified in section 2511(3). The Court recognized that "domestic security surveillance may involve different policy and practical considerations from the surveillance of 'ordinary crime' "24 in light of the frequent informational, as opposed to evidentiary, objectives of the former. Given these distinctions, the Court observed, "Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III."25 Among these might be different probable cause standards and relaxed time and reporting requirements. In sum:

We do not attempt to detail the precise standards for domestic security warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.26

If the Supreme Court was of the view in Keith that Title III is constituted of "refined requirements for the specified criminal surveillances," it is certainly difficult to credit the plurality's position that the Court at the same time believed that Title III was intended to accommodate the very different requirements of domestic security and "foreign affairs" surveillances. Rather, as the Court made crystal clear, its view was that Congress did not intend to legislate with regard to the types of surveillances involved in section 2511(3). This was the purpose of that section. It could hardly have been otherwise, as the Court perceived it, in light of the fact that the interrelated provisions of the Act are often totally inapposite to informational surveillances.

Thus, the Court's discussion in Keith of possible standards and procedures was not, as the plurality would have it, merely gratuitous commentary on the flexibility of the Fourth Amendment's "reasonableness" standard. The Court had the more concrete purpose of affording guidance to the Congress on the kinds of statutory procedures which would be constitutionally acceptable if Congress, after Keith, should decide to legislate in the area of domestic security.

That the Court's perception of Congressional intent with respect to section 2511(3) was correct is amply supported by the Senate Report of the Act. Its discussion begins with the explanation that "(p)aragraph (3) is intended to reflect a distinction between the administration of domestic criminal legislation . . . and the conduct of foreign affairs."27 The Report then emphasizes that "(w)here foreign affairs and internal security are involved, the proposed system of court ordered electronic surveillance envisioned for the administration of domestic criminal legislation is not intended necessarily to be applicable." Activities that "fall within the field of foreign affairs" are "outside the scope of the proposed chapter." Finally, the Report explains, because violations of domestic criminal legislation might be uncovered during a foreign affairs or national security surveillance, which would not necessarily be conducted in accordance with Title III procedures, it was Congress' intent in the last line of section 2511(3) to make clear that evidence of such criminal conduct is nevertheless admissible against the perpetrators so long as minimal constitutional requirements are met.

The plurality's attempt to reconcile the language in the Senate Report with its theory of the case is unpersuasive. The Report does indeed contemplate, in the plurality's words, "that a post hoc determination of reasonableness (of a section 2511(3) surveillance) will be made in criminal proceedings."28 This does not mean, however, that the Report necessarily expects that a prior warrant would never be obtained in such a case. As the Supreme Court emphasized in Keith, the very "definition of 'reasonableness' turns, at least in part, on the more specific commands of the warrant clause."29 If a warrant was obtained for a particular surveillance, the question of "reasonableness" in subsequent criminal proceedings is reduced to a determination whether probable cause existed for its issuance. If prior judicial approval was not obtained, the subsequent "reasonablness" inquiry must expand to include a determination whether, independent of the existence of probable cause, adequate justification is shown for not having secured a warrant. This is the constitutional requirement.

Certainly, Congress was unsure when it passed Title III whether the President could, as a constitutional matter, justify warrantless wiretaps in "foreign affairs" or "domestic security" cases. It seems equally clear, in view of the Supreme Court's analysis in Keith and the language of the Senate Report (e. g., that "foreign affairs" surveillances are "outside the scope of the proposed chapter"), that Congress was unwilling to lay down any statutory requirements for such informational surveillances. Instead, in the words of the Report, Congress left the question of the validity of a particular surveillance in the hands of the courts, for a determination of "reasonable(ness) based on an ad hoc judgment taking into consideration all of the facts and circumstances of the individual case, which is but the test of the Constitution itself."30 Significantly, the Report adds, "(t)he possibility that a judicial authorization for the interception could or could not have been obtained under the proposed chapter would be only one factor in such a judgment."31

The import of this language seems clear. If it appears to the trial judge that the sole objective of a "foreign affairs" or domestic security wiretap was that of gathering specific evidence with regard to one of the crimes enumerated in section 2516 as opposed, for example, to garnering information to ward off or prevent the "hostile acts" of another country then he has the discretion to prevent an end run around Title III by holding the surveillance invalid. Contrary to the majority's view, this appears the logical explanation for the Report's statement that where foreign affairs and internal security are involved Title III procedures are not intended necessarily to be applicable. Where it appears that the intent of such a surveillance was solely to gather prosecutorial evidence, then a court can hold that Title III procedures should have been followed.

Ironically, the plurality's own opinion points up the weakness of its position. Having strenuously argued that "Congress intended the procedures and remedies of Title III to apply to all Executive surveillance which, under the Constitution, must be initiated pursuant to judicial warrant,"32 the plurality adds a "caveat":33 Congress did not intend, it now appears, that two provisions at the heart of Title III (i. e., sections 2516 and 2518(1) (b)(i)) be given effect in the case of intelligence-gathering surveillances. Effectively, the plurality's "caveat" is an attempt to delete from the statute those sections which are most inapposite to "foreign affairs" and domestic security surveillances, in order to justify its holding that the rest of Title III's provisions are applicable. The only justification the plurality gives for so dissecting the Act is that adherence to sections 2516 and 2518(1) (b)(i) would "unduly trammel" the conduct of information-gathering surveillances, while the other provisions of the Act would not "substantially affect" such surveillance.34

It requires little argument to reject the plurality's approach. The Supreme Court observed in Keith the close interrelation of the Act's provisions, "delineating permissible interceptions of particular criminal activity upon carefully specified conditions."35 If Congress had intended to legislate with regard to information-gathering surveillances in Title III (beyond disclaiming such intent, in section 2511(3)), surely it would not have left it to the courts to guess which sections to enforce. Almost certainly, the provisions for such surveillances would have been separated from those for ordinary criminal wiretaps and specially designated. Moreover, it is likely that Congress would not have limited itself to an alteration of the probable cause requirement. (For example, as suggested by the Supreme Court in Keith, the time and reporting requirements might not be so strict as those in section 2518.) The logical view of section 2511(3), supported by the language of the Supreme Court in Keith and the Senate Report of the Act, is that Congress simply determined not to attempt in Title III to tackle the complex and controversial task of laying down procedures for informational as well as evidentiary surveillances.36

The plurality can point to only two instances where statutory language or legislative history might support its position. The first is the phrase in section 2511(3) which states that "(n)othing contained in this chapter . . . shall limit the constitutional power of the President." Based on this language, the plurality asserts:

(I)t is reasonable to assume that Congress intended to prohibit "unconstitutional" Executive surveillance, which would therefore be "in violation of this chapter" within the comprehension of the damages provision of Title III. (Cite) Thus, even if the procedures of Title III were inapplicable to national security wiretapping, the remedies of Title III should apply to unconstitutional exercises of presidential power.37

This argument collapses virtually of its own weight. It seems clear in section 2511(3) that Congress meant by its use of "constitutional power" only to identify the source of the President's prerogative in the fields of foreign affairs and national security. If in the body of Title III Congress did not legislate any procedures, or any other requirement, for foreign affairs surveillances, it is difficult to fathom the logic of drawing such surveillance within the ambit of the statute for the sole purpose of assessing damages. If Congress "simply did not legislate" with regard to such surveillances, it did not legislate period.

The second piece of "evidence" introduced by the plurality is the colloquy with regard to section 2511(3) between Senators Hart, Holland, and McClellan on the Senate floor. The Supreme Court in Keith observed of that discussion, "One could hardly expect a clearer expression of congressional neutrality . . . (concerning) whatever presidential surveillance powers existed in matters affecting the national security."38 The plurality focuses on a statement by Senator Hart, in which he first affirms that no congressional attempt was being made to define the limits of the President's powers. He then adds that he has always found those limits "extremely vague, especially in domestic security threats, as opposed to threats from foreign powers." Specifically:As I recall, in the recent Katz case, some of the Justices of the Supreme Court doubted that the President has any power at all under the Constitution to engage in tapping and bugging in national security cases without a court order. Section 2511(3) merely says that if the President has such a power, then its exercise is in no way affected by title III.³⁹

39. 114 Cong.Rec. at 308.

The Supreme Court omitted this portion of Senator Hart's statement from its quotation in Keith, and with good reason. It seems clear that the Senator referred to Katz and the questions surrounding the warrant requirement in domestic security cases only as an example of the "vagueness" of the law in the area covered by section 2511(3). Obviously, under that section, if the President has the authority to order warrantless wiretaps in domestic security or "foreign affairs" cases, the procedures he employs will not be affected by Title III. It does not necessarily follow, however, that if he does not have this authority, all such surveillances must be conducted in accordance with Title III procedures. Senator Hart does not say this, and neither the Senate Report of the Act or the Supreme Court in Keith supports the proposition.

In sum, there is little basis for the plurality's position that the procedures of Title III apply to all "foreign affairs" or domestic security surveillances in which prior judicial approval is required. If the procedures of Title III do not apply, the remedies for their violation cannot apply. This does not leave the appellants in this case without a remedy. If, as the next part of this opinion will elaborate, the wiretaps of the JDL were in violation of the Fourth Amendment, the appellants have a direct cause of action for damages under the Constitution. They are entitled to a remand to the District Court for an assessment of the merits of their claim and the validity of any defenses the defendants might have.40

A. The Foreign Affairs Exemption Inner Distinctions and Limitations

The issue which remains is whether the surveillance of the JDL without prior judicial approval violated the Fourth Amendment. At the outset, it must be made clear that that question cannot be answered by a simple talismanic reference to the "foreign affairs" power of the President. No matter how certain his constitutional mandate in this or any other area, the President is never free to act in complete disregard of the protection guaranteed each individual by the Bill of Rights. If his foreign affairs authority affords the Executive department an exemption from the requirement of prior judicial approval, it is not because the President can ignore constitutional safeguards in the performance of his duties; rather, it is because, on balance, the exigencies of foreign intelligence gathering outweigh the constitutional value placed on prior judicial approval.

The Supreme Court engaged in just such a comparative analytical approach in Keith, and found that the cost in terms of infringement on Fourth and First Amendment values was too high to justify allowing a national security surveillance to be conducted without a warrant. Appellees in the instant case distinguish the Keith decision by noting that the Court in that case took great pains to observe "(T)here (was) no evidence of any involvement, directly or indirectly, of a foreign power."41 That decision "require(d) no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."42 This case, on the other hand, clearly does "involve" a foreign power and does require a judgment on the reach of the President's "foreign affairs" surveillance authority. It can be readily granted, therefore, that the wiretap of the JDL is distinguishable from that of the individuals in Keith, but the problem remains whether the situations are constitutionally different. That question can only be answered by the same kind of balancing process the Supreme Court used in Keith.

If the Government's view of the Executive's wiretap authority were placed on a hypothetical spectrum, it would have three parts. At one terminal, where all wiretaps in ordinary criminal cases would be grouped, officials would be required to adhere to the strict procedural requirements of Title III. In the middle would lie surveillances in national security cases, as in Keith Although not subject to the strictures of Title III, these wiretaps would still have to satisfy basic constitutional requirements, including that of prior judicial approval. At the other terminal would rest all surveillances related to the foreign affairs authority of the President to protect the nation from the hostile acts, whether direct attack or diplomatic retaliation, of other countries. According to the Government, the involvement of a foreign power tips the constitutional balance in such fashion that prior judicial approval is not required for this kind of wiretap. In brief, the "reasonableness" standard of the Fourth Amendment is met without a warrant.

Weighing the Government's rationale for a sweeping "foreign affairs" exemption to the warrant requirement against the inroads such an exemption would make on important Fourth and First Amendment values, I must first conclude that a waiver of such breadth is unjustified. If a "foreign affairs" exemption exists, it is much narrower encompassing only surveillances on foreign agents and those in criminal collaboration with a foreign power. The Government, in its attempt to justify surveillances of persons because of their involvement or connection with a foreign power, fails to distinguish between two types of involvement which are quite different, although the foreign relations of the United States may be drastically affected in either case. The relationship of the Jewish Defense League with the Soviet Union characterized by bombs, brickbats, and verbal and written abuse was extremely antagonistic. To say it was non-collaborative is an understatement. In contrast, the involvement, for example, of Colonel Abel43 with the Soviet Union was that of a trusted and highly valued agent who served his native country by acquiring and transmitting the national security secrets of this country to the Soviets, until his espionage work was cut short by arrest and incarceration. Like Colonel Abel, David Greenglass and the Rosenbergs,44 although United States citizens, served the Soviet Union as espionage agents. All were collaborators with a foreign power.

That the activities of the JDL, the "Colonel Abels," and various U.S. citizens engaged in espionage for foreign countries all have an impact on our foreign relations and security cannot be denied. That the President and appropriate Executive departments have a duty and a power, derived from the Constitution, to deal with such persons or groups in order to protect the nation against the hostile acts of a foreign power and to preserve national security information is likewise irrefutable. But the issue in the instant case is what means and procedures the Executive is entitled to use in discharging its duty. And on that issue it makes a great deal of difference whether the persons or groups "involved with a foreign power" are acting as collaborators or non-collaborators.

Just why this is so can be seen by examining the rationales which have been advanced to justify an exemption from the requirement of prior judicial approval for "foreign affairs" surveillances.

B. Rationales for the Foreign Affairs Exemption the Balancing of Constitutional Powers, Responsibilities, and Rights

A variety of rationales have been advanced to support the recognition of an exemption from the warrant requirement for "foreign affairs" surveillances. Among them are the importance of speed, expertise, and great secrecy in the decision whether to place this kind of wiretap; the necessity for a free flow of intelligence data upon which the President can base informed judgments in the area of foreign affairs; and the potential for harm to the well-being of the entire country if an intelligence operation is compromised or stymied in the process of securing a warrant. As will be discussed below, these arguments may well be sufficiently strong to outweigh competing constitutional values when applied to an intelligence operation aimed at foreign agents or collaborators.

The broader becomes the range of domestic activities purportedly covered by the "foreign affairs" exemption, however, the deeper the inroads it makes on the Fourth Amendment values of privacy, political freedom, and judicial oversight of searches and seizures by the Government. Virtually every political action in this country has some international repercussions. Certainly all protests against this country's foreign policy, as well as protests against the internal or foreign policy of another country (as in this case), would have to be included. Every group, to mention only one example, which actively protested this country's involvement in the Vietnam war could have been subjected to a warrantless wiretap under the exemption proposed by the Government.

The constitutional waiver approved by the District Court in the instant case would cover all wiretaps connected with the President's conduct of our foreign relations with any country. Little reflection is required to recognize that this is an extremely broad exemption whose employment by the Executive might be subject to inordinate abuse.

The possibility that officials could abuse their prerogative in attempting to act under so vague a concept as the power to protect "domestic security" was one of the major factors in the Supreme Court's decision to reject the Government's appeal for a "domestic security" exemption in Keith. "History abundantly documents the tendency of Government however benevolent and benign its motives to view with suspicion those who most fervently dispute its policies."45 "Related to the conduct of foreign relations" and "involving a foreign power" are also extremely malleable criteria. Their utilization as standards for permitting warrantless surveillance activities would pose not only grave Fourth Amendment problems but also would threaten important First Amendment values.

"Foreign affairs" might easily be substituted for "national security" in the following quote from Keith:

National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of "ordinary" crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech.46

Keith was not a case in which the defendants had engaged in protected First Amendment activity. They were charged with a conspiracy to destroy government property. In the instant case, some JDL protest activity was constitutionally protected and some was not. (Not unexpectedly, the Soviet Union reacted adversely to both lawful and unlawful demonstrations of JDL disaffection with Soviet policy.) Notwithstanding the illegality of the defendants' actions, the Supreme Court observed in Keith : "Given the difficulty of defining the domestic security interest (or, it is submitted, "foreign affairs" interest), the danger of abuse in acting to protect that interest becomes apparent."47

To be sure, the Court's concern was that "(t)he price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power."48 It would appear, however, that in the Court's estimation the knowledge that the Executive could engage in wiretapping without prior judicial approval simply by invoking "domestic security" would deter lawful as well as unlawful dissent. The same reasoning is applicable in the instant case. Energetic protest activity often includes an element which is arguably unlawful. Public knowledge that the Executive has plenary power to authorize wiretaps without judicial scrutiny when the Government suspects an individual or group is engaged in unlawful activity might well limit the general exercise of vigorous dissent to an administration's conduct of our foreign affairs.

In Keith the Government attempted to counter the weight of Fourth and First Amendment arguments against a "domestic security" exception with the same kinds of reasons advanced in the instant case speed, secrecy, expertise, and the need to avoid any impediment to the President's discharge of his constitutional duty.⁴⁹ The Supreme Court found none of these rationales of sufficient persuasiveness (or importance) to justify waiving minimal Fourth Amendment requirements. There would appear to be only three factors in this case which might alter the constitutional balance established in Keith.

The first is that the President enjoys somewhat greater autonomy in the field of foreign affairs than in the exercise of his domestic duties. As was explained at the beginning of Part II, however, the certainty of the President's authority in this field cannot ipso facto justify the abrogation of constitutionally protected individual rights.

The second possible distinguishing feature is that the determination whether probable cause exists for a surveillance requires greater expertise where foreign affairs are involved than when domestic security is in question. That the reasonableness of a request for a "foreign affairs" wiretap is something so far beyond the ken of federal judges as to render them incompetent to make such a determination is at best a dubious proposition. "If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance."50 Moreover, the Government does not contest that an evaluation by a judge must be made when, as here, there is an attempt to prosecute someone who is overheard. If a judge is able to make a proper evaluation after a wiretap is conducted, it is certainly questionable why his judgment is less sound before it is installed. Finally, judges are fully aware of the special expertise the Executive department possesses in this area. If there is error in a court's decision, it is likely to stem from excessive reliance on that expertise rather than too little respect for the Executive's judgment.

The third factor which might distinguish the result reached in Keith from that which should obtain here is the added danger to the welfare of the country which the involvement of a foreign power brings to a criminal case. It is this factor which necessitates speed and great secrecy in determining whether surveillance is necessary. However persuasive this argument might be when the resources of another nation are covertly directed through the medium of an enemy agent or domestic collaborator toward the overthrow of the government, it is not convincing when the threat is the more generalized and uncertain one of a "deterioration in our foreign relations." Certainly the subversive activities of a purely domestic organization intent on destroying government institutions present a much stronger case for secrecy and speed of surveillance than the protest activities of a group which adversely affect the conduct of our foreign relations. The Supreme Court nevertheless was unable to find in Keith that the danger of compromising or hindering a domestic intelligence operation was sufficiently great to justify impinging on basic Fourth Amendment values by eliminating the warrant requirement. The constitutional balance established in that case would appear to control the instant case as well.

Important support for the position that any "foreign affairs" exemption which would apply to all surveillances "related to the conduct of foreign relations" is simply too broad is found in past Executive claims of constitutional privilege in this area. When President Roosevelt asserted the power to authorize warrantless surveillances on "national security" grounds, he limited that authorization to "communications of persons suspected of subversive activities against the Government of the United States, including suspected spies."51 Subsequent Presidential claims expanded the term "national security" to include "cases vitally affecting the domestic security," but none argued a blanket authority to engage in warrantless surveillances in all cases touching upon the conduct of foreign affairs. Moreover, although there is very general language in some cases about the inherent authority of the President to gather foreign intelligence, the only case in which the object of a warrantless "foreign affairs" surveillance has been revealed involved an alien agent of another country acting in collaboration with a citizen of this country.52 This authority, while arguing against the extremely broad constitutional waiver requested by the Government in the instant case, naturally raises the question whether a narrow exemption, limited to surveillances on those working on behalf of a foreign government and against this country, might not be constitutionally acceptable.

C. Collaborators and Non-Collaborators with a Foreign Power

The Supreme Court in Keith viewed the difference between domestic and foreign groups, for the purpose of judging whether a case was one involving domestic or foreign aspects of national security, as a question of the degree of collaboration between a group and agents or agencies of a foreign power.53 This distinction reflects the primary concern of the Executive and the Judiciary, since the concept of special Presidential prerogatives in the field of foreign intelligence gathering was first introduced, not to hamper the President's ability to safeguard this country against the subversive activities of foreign agents and fifth columnists. The constitutional validity of a "foreign affairs" exemption limited to surveillances on this narrow class of especially dangerous criminals is supported by the fact that it minimizes conflict with First and Fourth Amendment values.54

To sum up the importance and relevance of the distinction between collaborators and non-collaborators to the issue of the existence of (or limits on) the Executive's power to conduct electronic surveillance without prior judicial approval:

First: the process of balancing the interests, which support recognition of an exemption from the warrant requirement for all "foreign affairs" wiretaps, against the inroads such blanket recognition would make on the constitutionally protected rights of groups and individuals, demonstrates that, while there may be a case for an exemption where collaborators are concerned, the argument falls flat when, as in this case, non-collaborators are the targets.

1. The importance of absolute secrecy, speed, and informality in making the decision to conduct a surveillance reaches its zenith where collaborators are involved. Usually operating in stealth, they can only be detected by great stealth. The operations of non-collaborators (e. g., the Jewish Defense League), on the other hand, are likely to be notorious. This is not to say that a successful wiretap does not need to be surreptitious; but it is hard to justify any more secrecy or less formality in this situation than is required to obtain judicial approval for an ordinary criminal wiretap, when the whole world is aware of the surveillance target's activities.

2. The difficulty of finding a judge with sufficient background to make an intelligent decision on the question whether a surveillance is justified is arguably greater where collaboration with a foreign power is suspected. If the point be made that a judge with insufficient experience would probably grant the Executive's application automatically, then what protection is afforded anyone by useless formality at the sacrifice of speed and security? Where "foreign affairs" are involved, but only because of the connection of non-collaborators with a foreign power, there should be no inordinately greater difficulty in presenting the matter to a judge than in the usual criminal case. The instant case is a good example of non-collaborationist activity which involves a foreign nation, but nevertheless is readily comprehensible by a judge.

3. There are no First Amendment problems of dissuading the legitimate political dissent of collaborators with a foreign power, since they rarely have as their purpose the injection of their position into "the marketplace of ideas."55 In contrast, almost invariably non-collaborators depend heavily on their First Amendment freedom in order to propagandize their cause; that freedom would necessarily be inhibited by the existence of a broad Executive power to conduct surveillances under a loose "foreign affairs" exemption.

4. The simple domestic/foreign distinction i. e., Executive surveillance of purely domestic activity restricted by the requirement of prior judicial approval, but no restriction where foreign affairs are concerned is too easily subject to abuse.56 Almost every important political action in this country has some international repercussions. Granting the Executive's constitutional powers and expertise in foreign affairs, his authority would seem justifiably unrestricted only when dealing with collaborators with a foreign power, not with non-collaborators such as those involved in the instant case.

Second: Executive and judicial precedents supporting the existence of an extraordinary Executive surveillance authority within the ambit of the President's "foreign affairs" power usually have spoken in terms, or in the context, of espionage and sabotage by alien or domestic agents of a foreign country. Reference has rarely, if ever, been made to using that special power against non-collaborators.

1. Executive claims of privilege in the area of foreign affairs wiretapping have generally relied upon the importance of monitoring "persons suspected of subversive activities against the Government of the United States, including suspected spies."57

2. All cases which have upheld the exemption have involved, to our best knowledge, either foreign agents or U.S. citizens charged with collaboration. The Supreme Court's opinion in Keith, when eschewing a ruling on the foreign affairs aspects of "national security," spoke in terms of the activities of "foreign powers or their agents."58

3. The Supreme Court in the same case viewed the difference between domestic and foreign groups, for the purpose of judging whether a case involved domestic or foreign aspects of national security, as based upon the degree of collaboration between a group and "agencies of foreign powers."59

D. The Spectrum of Executive Electronic Surveillance Authority

My analysis thus brings me to a spectrum of Executive electronic surveillance authority composed of four parts, as compared with the Government's tripartite model. At one end are all wiretaps in ordinary criminal cases, in which officials must adhere to the strict requirements of Title III. Next are domestic security surveillances, as in Keith, which the Supreme Court declined to make subject to the strict procedures of Title III, but which the Court held nevertheless are subject to the constitutional requirements of "prior judicial approval." Third, if the above analysis is accepted, are surveillances, such as that in the instant case, whose primary purpose is the protection of our relations with another country. This type of "foreign affairs" surveillance might differ from a domestic security surveillance in the kind of probable cause showing required to justify a wiretap;60 nevertheless, it, too, must have prior judicial approval. Fourth, and finally, at the opposite end of the spectrum from Title III surveillances, are surveillances directed at foreign agents and collaborators. To my mind this type of surveillance presents the only circumstance where the balance of constitutional powers, responsibilities, and rights may justify the Executive in dispensing with prior judicial approval. That case is not before us; and neither this opinion nor the plurality's attempts to decide the question. Even if a "foreign affairs" exemption, limited to collaborators and foreign agents, does find constitutional support, it has no application to the warrantless surveillance practiced by the Executive here.

Thus, on the particular facts of this case, I join in the plurality's determination that the defendants were in violation of the Fourth Amendment when they placed wiretaps on the phones of the JDL without obtaining prior judicial approval. Had the plurality further taken the logical position that the remedy for this constitutional violation was a damage action under the Constitution, I would have no substantive quarrel with their opinion. Instead, however, they have chosen to draw all surveillances subject to Fourth Amendment requirements whether involving domestic security, foreign affairs, or ordinary criminal activity within the ambit of a regulatory statute which is geared entirely toward auditory searches for evidence to support the prosecution of specifically enumerated crimes. Recognizing the anomaly of their position which finds no support in the legislative history of Title III or in Supreme Court case law the plurality determine to expunge from the regulatory scheme those provisions which are in most glaring conflict with the informational character of domestic security and foreign affairs surveillances. For the reasons detailed in Part I of this opinion, I strongly dissent from this legislative excursion by the plurality and the concomitant application to this case of the statutory damages provision of Title III.

MacKINNON, Circuit Judge (concurring in part and dissenting in part):

Except as hereafter indicated I concur in Judge Wilkey's opinion in this case, and particularly in his conclusion that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, does not apply to the instant situation. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), stated that Title III "does not attempt to define or delineate the powers of the President to meet domestic threats to the national security" (Id. at 322, 92 S.Ct. at 2139) and that the "standards and procedures" of Title III were not necessarily applicable to the facts of that domestic security case. If Title III does not apply to the exercise of presidential powers in the domestic security field, a fortiori it is even less applicable to the exercise of presidential power in the area of our relations with foreign governments, since the President admittedly is vested with greater freedom of action in foreign affairs than in the domestic field. I readily join in the conclusion that the wiretaps on the Jewish Defense League were placed pursuant to the President's foreign affairs power, and I do not read the majority opinion as disagreeing with that finding.

At least in the case of collaborators or agents of a foreign power, I believe the national interest requires that the President be free to engage in his information gathering functions without the burden of obtaining prior judicial approval. United States v. Butenko, 494 F.2d 593 (3d Cir.), cert. denied, Ivanov v. United States, 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d 121 (1974). I concur in Judge Wilkey's balancing of the interests in the case of agents and collaborators, but as all opinions correctly note, that issue is not presented by the instant facts. I would not through dicta suggest a solution in advance of the problem.

In the case of pure information gathering activities directed against non-collaborators, I recognize that the imposition of a requirement of prior judicial approval of wiretaps may in some instances protect constitutional interests of the targets of the surveillance. However, I have considerable difficulty in applying the probable cause requirements of the Fourth Amendment to such surveillances. The first clause requiring that searches and seizures not be "unreasonable" can be applied, but where evidence of crime is not sought I do not know the rationale for applying the second clause which states that "no warrants shall issue, but upon probable cause . . . ." This traditionally has been interpreted to require a showing of probable cause to believe that a crime has been committed.1 The various statutes and Rules which authorize courts to issue warrants for searches and seizures incorporate this standard. See, e. g., Fed.R.Crim.P. 41(b), (c)2; 18 U.S.C. § 2518(3).3 Obviously this criterion is inapplicable to situations where no crime is being investigated and the only purpose of the tap is to gather information relevant to the conduct of foreign affairs. Saying that the standard is merely "probable cause" without defining that term ignores the history of the provision and its interpretation and relegates applicants for wiretaps and judges considering such applications to weighing an amorphous concept with no definite standards.

Judge Wright recognizes the incompleteness of the standard he would impose when he states that the courts could "fashion" a standard of probable cause. Majority Op., 170 U.S.App.D.C. at ---, 516 F.2d at 624-625. He apparently would fashion this standard by striking out of Title III certain provisions relating to probable cause which he finds inconvenient to reaching his desired result and replacing them with a balancing of "possible factor(s) that judges might consider in determining whether a proposed search would be reasonable." Majority Op., 170 U.S.App.D.C. at ---, 516 F.2d at 657. Congress certainly did not intend the statute to be dissected in this manner. Furthermore, the majority specifically declines to "delineate the exact procedures the Executive must follow in securing warrants" (Majority Op., 170 U.S.App.D.C. at ---, 516 F.2d at 658) and thus leaves the area as ambiguous as it found it.

When the Supreme Court encountered this same dilemma in United States v. United States District Court, supra, in the field of domestic security wiretaps, it responded by urging Congress to enact standards governing the approval of applications for informational surveillance. 407 U.S. at 322-23, 92 S.Ct. 2125. Although Congress has not yet acted on this matter, the Court's approach is still valid. If the standards are to be judicially created, that is more properly done by the Supreme Court which can formulate nationwide standards than by the lower courts whose standards would vary from jurisdiction to jurisdiction.

I therefore dissent from the majority opinion, and I join in Judge Wilkey's opinion subject to the differences expressed above.