Byron Agonistes

Apropos of nothing: Katz v. United States, 389 U.S. 347 (1967), is an fascinating decision.

The facts in short: without a warrant, the FBI planted a listening device on the outside of a public telephone booth* that it knew the defendant used to communicate about illegal gambling. His overheard words were introduced as evidence against him. He claimed the evidence should have been excluded because it was obtained without a warrant, in violation of the 4th Amendment. The United States argued that the 4th Amendment was not implicated because there had been no trespass upon private property.

The Katz decision’s articulation of the interest protected by the 4th Amendment -- the reasonable expectation of privacy -- has been the cornerstone of modern 4th Amendment jurisprudence.** Remarkably, that articulation is found not in Justice Stewart’s majority opinion, but in Justice Harlan’s concurrence -- in which no other Justice joined.

But most interesting to me is Justice White’s two-paragraph concurrence. It was so startling that Justices Douglas and Brennan wrote separately for the sole purpose of denouncing it.

White wrote: “We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.”

The warrant procedure, of course, is the interposition of the judiciary between the executive arm of state and the individual. If there is genius in the 4th Amendment, it lies in that institutional barrier. In effect, two institutions, one interested and one neutral, must agree that an extreme intrusion into the private life of the individual is warranted. Douglas and Brennan voiced astonishment at White’s “wholly unwarranted green light for the Executive Branch” to eavesdrop whenever it decided, for itself, that doing so was reasonably in the interest of national security. They insisted that the 4th Amendment required the warrant procedure precisely because the Executive could not and should be neutral in such decisions.

National security concerns were not presented by the facts of the case. They were not briefed, argued, or, for that matter, even decided by the case.

Why, then, did Justice White feel compelled to write such an unusual concurrence?

I wondered about that for years, then I came across a clue . . . .

Byron White entered Washington politics with the election of President Kennedy, who appointed him Deputy Attorney General, second-in-command at the Justice Department to Attorney General Robert Kennedy. On May 4, 1961, he received a memo from J. Edgar Hoover, who was nominally under White’s command within the structure of the Justice Department. Hoover informed White that it was FBI practice to install listening devices without pre-approval, let alone a warrant, in investigations it decided were related to “internal security.” That was true, Hoover said, “even though trespass is necessary” -- the pre-Katz trigger for the protections of the Fourth Amendment.  If Hoover was throwing down a gauntlet, White did not pick it up.

Hoover did request the Justice Department’s pre-approval for warrantless phone taps. For example, he requested and got pre-approval to tap Martin Luther King’s phones. But he sought neither a warrant nor pre-approval to place listening devices in King’s hotel rooms. Hoover, of course, attempted to use those recordings to blackmail King into committing suicide.

The Senate’s investigation into the FBI’s illegal activities under Hoover identified Byron White as the Justice Department official Hoover informed of the FBI’s warrantless surveillance practices. The investigation determined that although Justice Department officials were not specifically aware that microphones were placed in King’s hotel rooms, it was generally aware of the practice (through Hoover’s memo to White), and officials acknowledged they read transcripts from King's hotel rooms that could only have come through microphone surveillance.

When he wrote his concurrence in Katz, White knew that with the acquiescence of Justice Department officials like himself, the FBI routinely planted listening devices in private places without a warrant, regardless of the strictures of the 4th Amendment.  Maybe he genuinely believed that practice was justified.  But to me, his concurrence reads like one side of an argument he'd been having with himself for years.  It seems his colleagues were -- like the rest of America -- not privy to White's internal debate.  Perhaps that explains why Douglas and Brennan found his concurrence mystifying.

The Senate investigation revelations sparked reforms, including the creation of the Foreign Intelligence Surveillance Court, intended to limit the ability of the Executive to conduct warrantless surveillance in matters of alleged national security. In the post-9/11 era, we have learned those reforms had substantial limits in practice. In fact, it is arguable that the spirit of White’s concurrence was embraced as policy.

* my students have no idea what that is, incidentally.

* * Today, of course, that standard strains and groans under the weight of new technologies and surveillance practices. A number of superb scholars, including contributors to this forum, and the Court itself have questioned whether the Katz formulation is adequate any longer.

Comments

[Orin Kerr]

Interesting post. As I understand the history, the question of national security wiretapping was also a subject of considerable public debate in those days. Justice White's dissent in Berger v. New York earlier in the year talked about then-pending legislation the issue. From his dissent, with paragraph breaks added:

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The Court also seeks support in the fact that the Federal Government does not now condone electronic eavesdropping. But here the Court is treading on treacherous ground. [n4] It is true that the Department of Justice has now disowned the relevant findings and recommendations of the Crime Commission, see Hearings on H.R. 5386 before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., ser. 3, at 308 (1967) (hereafter cited as "House Hearings"), [p115] and that it has recommended to the Congress a bill which would impose broad prohibitions on wiretapping and eavesdropping.

But although the Department's communication to the Congress speaks of "exercis[ing] the full reach of our constitutional powers to outlaw electronic eavesdropping on private conversations," [n5] the fact is, as I have already indicated, that the bill does nothing of the kind. Both H.R. 5386 and its counterpart in the Senate, S. 928, provide that the prohibitions in the bill shall not be deemed to apply to interceptions in national security cases. Apparently, under this legislation, the President, without court order, would be permitted to authorize wiretapping or eavesdropping "to protect the Nation against actual or potential attack or other hostile acts of a foreign power or any other serious threat to the security of the United States, or to protect national security information against foreign intelligence activities." H.R. 5386 and S. 928, § 3.

There are several interesting aspects to this proposed national security exemption in light of the Court's opinion. First, there is no limitation on the President's power to delegate his authority, and it seems likely that at least the Attorney General would exercise it. House Hearings at 302.

Second, the national security exception would reach cases like sabotage and investigations of organizations controlled by a foreign government. For example, wiretapping to prove an individual is a member of the Communist Party, it is said, would be permissible under the statute. House Hearings at 292.

Third, information from authorized surveillance in the national security area would not be admissible in evidence; to the contrary, the surveillance would apparently be for investigative and informational use only, not for [p116] use in a criminal prosecution and not authorized because of any belief or suspicion that a crime is being committed or is about to be committed. House Hearings at 289.

Fourth, the Department of Justice has recommended that the Congress not await this Court's decision in the case now before us because, whether or not the Court upholds the New York statute, the power of Congress to enact the proposed legislation would not be affected. House Hearings at 308. But if electronic surveillance is a "general search," or if it must be circumscribed in the manner the Court now suggests, how can surreptitious electronic surveillance of a suspected Communist or a suspected saboteur escape the strictures of the Fourth Amendment?

It seems obvious from the Department of Justice bill that the present Administration believes that there are some purposes and uses of electronic surveillance which do not involve violations of the Fourth Amendment by the Executive Branch. Such being the case, even if the views of the Executive were to be the final answer in this case, the requirements imposed by the Court to constitutionalize wiretapping and eavesdropping are a far cry from the practice anticipated under the proposed federal legislation now before the Congress.
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[Djsziff]

Re the first * footnote: When I was clerking for CA2 back in 2007, the court heard a case between two huge phone companies (maybe Verizon and AT&T?) over the rights to phone booths in various parts of Manhattan. During oral argument, one of the judges on the panel asked why these companies were spending so much money litigating over phone booths in 2007. The answer: Advertising. The phone booths were useless as phones. But they were prime eye-level billboards on busy Manhattan sidewalks, on which the companies could sell ad space. Amazing.