United States v. United States District Court/Concurrence Douglas

by William O. Douglas

MR. JUSTICE DOUGLAS, concurring.

While I join in the opinion of the Court, I add these words in support of it.

This is an important phase in the campaign of the police and intelligence agencies to obtain exemptions from the Warrant Clause of the Fourth Amendment. For, due to the clandestine nature of electronic eavesdropping, the need is acute for placing on the Government [p325] the heavy burden to show that "exigencies of the situation [make its] course imperative." ^[1] Other abuses, such as the search incident to arrest, have been partly deterred by the threat of damage actions against offending officers, ^[2] the risk of adverse publicity, or the possibility of reform through the political process. These latter safeguards, however, are ineffective against lawless wiretapping and "bugging" of which their victims are totally unaware. Moreover, even the risk of exclusion of tainted evidence would here appear to be of negligible deterrent value, inasmuch as the United States frankly concedes that the primary purpose of these searches is to fortify its intelligence collage, rather than to accumulate evidence to support indictments and convictions. If the Warrant Clause were held inapplicable here, then the federal intelligence machine would literally enjoy unchecked discretion.

Here, federal agents wish to rummage for months on end through every conversation, no matter how intimate or personal, carried over selected telephone lines, simply to seize those few utterances which may add to their sense of the pulse of a domestic underground.

We are told that one national security wiretap lasted for 14 months and monitored over 900 conversations. Senator Edward Kennedy found recently that "warrantless devices accounted for an average of 78 to 209 days of listening per device, as compared with a 13-day per device average for those devices installed under court order." ^[3] He concluded that the Government's [p326] revelations posed

the frightening possibility that the conversations of untold thousands of citizens of this country are being monitored on secret devices which no judge has authorized and which may remain in operation for months and perhaps years at a time. ^[4]

Even the most innocent and random caller who uses or telephones into a tapped line can become a flagged number in the Government's data bank. See Laird v. Tatum, 1971 Term, No. 71-288.

Such gross invasions of privacy epitomize the very evil to which the Warrant Clause was directed. This Court has been the unfortunate witness to the hazards of police intrusions which did not receive prior sanction by independent magistrates. For example, in Weeks v. United States, 232 U.S. 383; Mapp v. Ohio, 367 U.S. 643; and Chimel v. California, 395 U.S. 752, entire homes were ransacked pursuant to warrantless searches. Indeed, in Kremen v. United States, 353 U.S. 346, the entire contents of a cabin, totaling more than 800 items (such as "1 Dish Rag") ^[5] were seized incident to an arrest of its occupant and were taken to San Francisco for study by FBI agents. In a similar case, Von Cleef v. New [p327] Jersey, 395 U.S. 814, police, without a warrant, searched an arrestee's house for three hours, eventually seizing

several thousand articles, including books, magazines, catalogues, mailing lists, private correspondence (both open and unopened), photographs, drawings, and film.

Id. at 815. In Silverthorne Lumber Co. v. United States, 251 U.S. 385, federal agents "without a shadow of authority" raided the offices of one of the petitioners (the proprietors of which had earlier been jailed) and "made a clean sweep of all the books, papers and documents found there." Justice Holmes, for the Court, termed this tactic an "outrage." Id. at 390, 391. In Stanford v. Texas, 379 U.S. 476, state police seized more than 2,000 items of literature, including the writings of Mr. Justice Black, pursuant to a general search warrant issued to inspect an alleged subversive's home.

That "domestic security" is said to be involved here does not draw this case outside the mainstream of Fourth Amendment law. Rather, the recurring desire of reigning officials to employ dragnet techniques to intimidate their critics lies at the core of that prohibition. For it was such excesses as the use of general warrants and the writs of assistance that led to the ratification of the Fourth Amendment. In Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng.Rep. 807, decided in 1765, one finds a striking parallel to the executive warrants utilized here. The Secretary of State had issued general executive warrants to his messengers authorizing them to roam about and to seize libelous material and libellants of the sovereign. Entick, a critic of the Crown, was the victim of one such general search during which his seditious publications were impounded. He brought a successful damage action for trespass against the messengers. The verdict was sustained on appeal. Lord Camden wrote that, if such sweeping tactics were validated, then

the secret cabinets and bureaus of every [p328] subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the secretary of state shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.

Id. at 1063. In a related and similar proceeding, Huckle v. Money, 2 Wils. K.B. 206, 207, 95 Eng.Rep. 768, 769 (1763), the same judge who presided over Entick's appeal held for another victim of the same despotic practice, saying "[t]o enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition. . . ." See also Wilkes v. Wood, 19 How.St.Tr. 1153, 98 Eng.Rep. 489 (1763). As early as Boyd v. United States, 116 U.S. 616, 626, and as recently as Stanford v. Texas, supra, at 485-486; Berger v. New York, 388 U.S. 41, 49-50; and Coolidge v. New Hampshire, supra, at 455 n. 9, the tyrannical invasions described and assailed in Entick, Huckle, and Wilkes, practices which also were endured by the colonists, ^[6] have been recognized [p329] as the primary abuses which ensured the Warrant Clause a prominent place in our Bill of Rights. See J. Landynski, Search and Seizure and the Supreme Court 288 (1966). N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 478 (1937); Note, Warrantless Searches In Light of Chimel: A Return To The Original Understanding, 11 Ariz.L.Rev. 457, 460 476 (1969).

As illustrated by a flood of cases before us this Term, e.g., Laird v. Tatum, No. 71-288; Gelbard v. United States, No. 71-110; United States v. Egan, No. 71-263; United States v. Caldwell, No. 757; United States v. Gravel, No. 71-1026; Kleindienst v. Mandel, No. 71-16, we are currently in the throes of another national seizure of paranoia, resembling the hysteria which surrounded the Alien and Sedition Acts, the Palmer Raids, and the McCarthy era. Those who register dissent or who petition their governments for redress are subjected to scrutiny by grand juries, ^[7] by the FBI, ^[8] or even by the military. ^[9] Their associates are interrogated. [p330] Their home are bugged and their telephones are wiretapped. They are befriended by secret government informers. ^[10] Their patriotism and loyalty are questioned. ^[11] [p331] Senator Sam Ervin, who has chaired hearings on military surveillance of civilian dissidents, warns that "it is not an exaggeration to talk in terms of hundreds of thousands of . . . dossiers." ^[12] Senator Kennedy, as mentioned supra, found "the frightening possibility that the conversations of untold thousands are being monitored on secret devices." More than our privacy is implicated. Also at stake is the reach of the Government's power to intimidate its critics.

When the Executive attempts to excuse these tactics as essential to its defense against internal subversion, we are obliged to remind it, without apology, of this Court's long commitment to the preservation of the Bill of Rights from the corrosive environment of precisely such expedients. ^[13] [p332] As Justice Brandeis said, concurring in Whitney v. California, 274 U.S. 357, 377:

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.

Chief Justice Warren put it this way in United States v. Robel, 389 U.S. 258, 264:

[T]his concept of "national defense" cannot be deemed an end in itself, justifying any . . . power designed to promote such a goal. Implicit in the term "national defense" is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which [make] the defense of the Nation worthwhile.

The Warrant Clause has stood as a barrier against intrusions by officialdom into the privacies of life. But if that barrier were lowered now to permit suspected subversives' most intimate conversations to be pillaged then why could not their abodes or mail be secretly searched by the same authority? To defeat so terrifying a claim of inherent power, we need only stand by the enduring values served by the Fourth Amendment. As we stated last Term in Coolidge v. New Hampshire, 403 U.S. 443, 455:

In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law [p333] and the values that it represents may appear unrealistic or "extravagant" to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own, they won . . . a right of personal security against arbitrary intrusions. . . . If times have changed, reducing everyman's scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.

We have as much or more to fear from the erosion of our sense of privacy and independence by the omnipresent electronic ear of the Government as we do from the likelihood that fomenters of domestic upheaval will modify our form of governing. ^[14] [p334]

Notes

↑ . Coolidge v. New Hampshire, 403 U.S. 443, 455; McDonald v. United States, 335 U.S. 451, 456; Chimel v. California, 395 U.S. 752; United States v. Jeffers, 342 U.S. 48, 51.

↑ . See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388.

↑ . Letter from Senator Edward Kennedy to Members of the Subcommittee on Administrative Procedure and Practice of the Senate Judiciary Committee, Dec. 17, 1971, p. 2. Senator Kennedy included in his letter a chart comparing court-ordered and department-ordered wiretapping and bugging by federal agencies. This chart is reproduced in the Appendix to this opinion. For a statistical breakdown by duration, location, and implementing agency of the 1,042 wiretap orders issued in 1971 by state and federal judges, see Administrative Office of the United States Courts, Report on Applications for Orders Authorizing or Approving the Interception of Wire or Oral Communications for 1971; The Washington Post, May 14, 1972, p. A30, col. 1 (final ed.).

↑ . Kennedy, supra, n. 3, at 2. See also H. Schwartz, A Report on the Costs and Benefits of Electronic Surveillance (American Civil Liberties Union 1971); Schwartz, The Legitimation of Electronic Eavesdropping: The Politics of "Law and Order," 67 Mich.L.Rev. 455 (1969).

↑ . For a complete itemization of the objects seized, see the Appendix to Kremen v. United States, 353 U.S. 346, 349.

↑ .

On this side of the Atlantic, the argument concerning the validity of general search warrants centered around the writs of assistance which were used by customs officers for the detection of smuggled goods.

N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 51 (1937). In February, 1761, all writs expired six months after the death of George II, and Boston merchants petitioned the Superior Court in opposition to the granting of any new writs. The merchants were represented by James Otis, Jr., who later became a leader in the movement for independence.

Otis completely electrified the large audience in the court room with his denunciation of England's whole policy toward the Colonies and with his argument against general warrants. John Adams, then a young man less than twenty-six years of age and not yet admitted to the bar, was a spectator, and many years later described the scene in these oft-quoted words: "I do say in the most solemn manner that Mr. Otis's oration against the Writs of Assistance breathed into this nation the breath of life." He "was a flame of fire! Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against Writs of Assistance. Then and there was the first scene of opposition to the arbitrary claims of Great Britain. Then and there, the child Independence was born. In 15 years, namely in 1776, he grew to manhood, and declared himself free."

Id. at 559.

↑ . See Donner & Cerruti, The Grand Jury Network: How the Nixon Administration Has Secretly Perverted A Traditional Safeguard Of Individual Rights, 214 The Nation 5 (1972). See also United States v. Caldwell, O.T. 1971, No. 70-57; United States v. Gravel, O.T. 1971, No. 71-1026; Gelbard v. United States and United States v. Egan, O.T. 1971, Nos. 71-110 and 71-263. And see N.Y. Times, July 15, 1971, p. 6, col. 1 (grand jury investigation of N.Y. Times staff which published the Pentagon Papers).

↑ . E.g., N.Y. Times, April 12, 1970, p. 1, col. 2 ("U.S. To Tighten Surveillance of Radicals"); N.Y. Times, Dec. 14, 1969, p. 1, col. 1 ("F.B.I.'s Informants and Bugs Collect Data On Black Panthers"); the Washington Post, May 12, 1972, p. D21, col. 5 ("When the FBI Calls, Everybody Talks"); the Washington Post, May 16, 1972, p. B15, col. 5 ("Black Activists Are FBI Targets"); the Washington Post, May 17, 1972, p. B13, col. 5 ("Bedroom Peeking Sharpens FBI Files"). And, concerning an FBI investigation of Daniel Schorr, a television correspondent critical of the Government, see N.Y. Times, Nov. 11, 1971, p. 95, col. 4; and N.Y. Times, Nov. 12, 1971, p. 13, col. 1. For the wiretapping and bugging of Dr. Martin Luther King by the FBI, see V. Navasky, Kennedy Justice 135-155 (1971). For the wiretapping of Mrs. Eleanor Roosevelt and John L. Lewis by the FBI see Theoharis & Meyer, The "National Security" Justification For Electronic Eavesdropping: An Elusive Exception, 14 Wayne L.Rev. 749, 760-761 (1968).

↑ . See Laird v. Tatum, O.T. 1971, No. 71-288; see also Federal Data Banks, Computers and the Bill of Rights, Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 92d Cong., 1st Sess. (1971); N.Y. Times, Feb. 29, 1972, p. 1, col. 3.

↑ .

Informers have been used for national security reasons throughout the twentieth century. They were deployed to combat what was perceived to be an internal threat from radicals during the early 1920's. When fears began to focus on Communism, groups thought to have some connection with the Communist Party were heavily infiltrated. Infiltration of the Party itself was so intense that one former FBI agent estimated a ratio of one informant for every 5.7 members in 1962. More recently, attention has shifted to militant anti-war and civil rights groups. In part because of support for such groups among university students throughout the country, informers seem to have become ubiquitous on campus. Some insight into the scope of the current use of informers was provided by the Media Papers, FBI documents stolen in early 1971 from a Bureau office in Media, Pennsylvania. The papers disclose FBI attempts to infiltrate a conference of war resisters at Haverford College in August, 1969, and a convention of the National Association of Black Students in June, 1970. They also reveal FBI endeavors to recruit informers, ranging from bill collectors to apartment janitors, in an effort to develop constant surveillance in black communities and New Left organizations

[N.Y. Times, April 8, 1971, p. 22, col. 1]. In Philadelphia's black community, for instance, a whole range of buildings "including offices of the Congress of Racial Equality, the Southern Christian Leadership Conference [and] the Black Coalition" [ibid.] was singled out for surveillance by building employees and other similar informers working for the FBI.

Note, Developments In The Law — The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1272-1273 (1972). For accounts of the impersonation of journalists by police, FBI agents and soldiers in order to gain the confidences of dissidents, see Press Freedoms Under Pressure, Report of the Twentieth Century Fund Task Force on the Government and the Press 29-34, 86-97 (1972). For the revelation of Army infiltration of political organizations and spying on Senators, Governors and Congressmen, see Federal Data Banks, Computers and the Bill of Rights, Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 92d Cong., 1st Sess. (1971) (discussed in my dissent from the denial of certiorari in Williamson v. United States, 405 U.S. 1026). Among the Media Papers was the suggestion by the FBI that investigation of dissidents be stepped up in order to "‘enhance the paranoia endemic in these circles and [to] further serve to get the point across there is an FBI agent behind every mailbox.'" N.Y. Times, March 25, 1971, p. 33, col. 1.

↑ . E.g., N.Y. Times, Feb. 8, 1972, p. 1, col. 8 (Senate peace advocates said, by presidential adviser, to be aiding and abetting the enemy).

↑ . Amicus curiae brief submitted by Senator Sam Ervin in Laird v. Tatum, No. 71-288, O.T. 1971, p. 8.

↑ . E.g., New York Times Co. v. United States, 403 U.S. 713; Powell v. McCormack, 395 U.S. 486; United States v. Robel, 389 U.S. 258, 264; Aptheker v. Secretary of State, 378 U.S. 500; Baggett v. Bullitt, 377 U.S. 360; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579; Duncan v. Kahanamoku, 327 U.S. 304; White v. Steer, 327 U.S. 304; De Jonge v. Oregon, 299 U.S. 353, 365; Ex parte Milligan, 4 Wall. 2; Mitchell v. Harmony, 13 How. 115. Note, The "National Security Wiretap": Presidential Prerogative or Judicial Responsibility, 45 S.Cal.L.Rev. 888, 907-912 (1972).

↑ . I continue in my belief that it would be extremely difficult to write a search warrant specifically naming the particular conversations to be seized, and therefore any such attempt would amount to a general warrant, the very abuse condemned by the Fourth Amendment. As I said, dissenting in Osborn v. United States, 385 U.S. 323, 353:

Such devices lay down a dragnet which indiscriminately sweeps in all conversations within its scope, without regard to the nature of the conversations, or the participants. A warrant authorizing such devices is no different from the general warrants the Fourth Amendment was intended to prohibit.