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October 06, 2015


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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:

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.


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.

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