The indictment, on April 10, of three former high-ranking officials of the Federal Bureau of Investigation for having directed agents to use surreptitious entries—“black-bag jobs”—in an effort to locate Weather Underground fugitives raises important questions, not simply of the guilt or innocence of the accused, but of the relationship between constitutional guarantees of privacy and the problems of investigating well-organized conspiracies. We do not want the police breaking into our homes or rifling our mail; we also do not want political terrorists or organized-crime syndicates operating in defiance of the law because of their invulnerability to conventional investigative techniques. A line has to be drawn, but so far the government has not done a very good job of drawing it.
L. Patrick Gray, W. Mark Felt, and Edward S. Miller were indicted for conspiring to “injure and oppress citizens of the United States who were relatives and acquaintances of Weatherman fugitives, in the free exercise and enjoyment of certain rights and privileges secured to them by the Constitution,” including the right to be secure in their homes against unreasonable searches and seizures. This they did, the indictment alleges, by causing FBI agents to break into the homes of those “relatives and acquaintances” in New York and New Jersey.
Black-bag jobs have been used by the FBI for at least thirty-five years. By its own admission, the Bureau made at least 238 surreptitious entries of homes and offices of persons judged to be domestic-security risks between 1942 and 1968, and they also made an unknown but large number of such entries into the homes and offices of persons believed to be involved in foreign espionage. No experienced counterintelligence officer doubts that the secret police of virtually every other nation in the world make use of such techniques also.
Why, then, were the break-ins that occurred in the early 1970’s, allegedly authorized by Gray, Felt, and Miller, singled out for punishment? And if these men are punished, are there any grounds on which break-ins can be justified? To answer these questions, one must first understand the history of unconventional investigative techniques and the changing, and still uncertain, nature of the law governing such matters.
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For many years, the FBI distinguished between investigations designed to gather intelligence and those designed to gather evidence. Gathering intelligence—background information about the associations, movements, abilities, and intentions of persons or groups—was not thought to be limited by the constitutional prohibition against “unreasonable searches and seizures.” If intelligence information was not introduced as evidence in a criminal trial, then no one was harmed by the gathering of that information. In this view, even actions that seemed clearly illegal under existing law could be interpreted as exempt from such restrictions if the matter involved foreign intelligence or subversive activity, or if higher executive authority—the Attorney General or the President—authorized it.
For example, the Federal Communications Act of 1934 made it illegal to “intercept and divulge” telephone communications, and the Supreme Court held three years later that evidence obtained by such unlawful wiretaps could not be introduced into a federal criminal trial. But Attorney General Robert Jackson ruled in 1941 that it was proper for the FBI to intercept such communications—i.e., to engage in wiretapping—provided it did not “divulge” them. From then until 1967, the right of the FBI to wiretap was not successfully challenged.
Wiretapping does not ordinarily involve physically entering someone’s home or office. A tap can be arranged outside the building, at a telephone junction box, or even at telephone company headquarters. Because of the absence of surreptitious entry, the Supreme Court held that wiretaps were not a violation of the Fourth Amendment to the Constitution. Until 1967, wiretaps carried out without judicial warrants were not unconstitutional and, provided they were not used to produce evidence introduced in court or otherwise divulged, they were not even clearly illegal.
Investigations involving actual physical trespass were a different matter. Entering a home or office is obviously necessary if one wishes to plant a hidden microphone (a “bug”) or to obtain or copy documents without the knowledge of the occupants. Trespass for the purpose of placing a bug in internal-security cases was approved by various Attorneys General, at least as far back as Herbert Brownell in 1954.
The Brownell memorandum, addressed to J. Edgar Hoover, specifically authorized microphone surveillance in cases involving “espionage agents, possible saboteurs, and subversive persons” not only for the purpose of getting information useful in a prosecution, but also in furtherance of the FBI’s “intelligence function in connection with internal-security matters.” The memo explicitly recognized that placing these microphones would often involve trespass and that when trespass occurred it might affect the admissibility into court of any evidence gathered, but stated that this possibility should not limit the use of the technique for intelligence purposes.
Succeeding Attorneys General were aware of this practice, and on occasion reaffirmed its propriety, albeit with modifications. Hoover notified Attorney General Byron White in 1961 of the use of bugs in internal-security matters. In 1965, Attorney General Nicholas Katzenbach issued new instructions requiring written approval by the Attorney General in advance of any bugging. Though these bugs were to be limited to “national-security” cases, Katzenbach told Hoover that he would continue to approve requests for bugs and saw “no need to curtail any such activities in the national-security field.”
In the mid-1960’s, an argument broke out between Hoover and Attorney General Robert F. Kennedy as to whether Kennedy had authorized bugs in the field of organized crime (clearly not a “national-security” area). Charges and counter-charges flew, and the facts may never be known with certainty. Victor Navasky, in his book, Kennedy Justice, concludes that Kennedy may not have known, but that several of his subordinates did, that Kennedy himself should have known, and that in any event it would have been hard to explain how the FBI knew in such great detail the activities of organized-crime figures (the vigorous investigation of whom had been pressed by Kennedy) if they had not had microphone surveillances in place.
Surreptitious entries for the purpose of reading mail or copying documents, rather than for the purpose of installing bugs, were probably not known to or directly authorized by the Attorney General. That, at least, is the conclusion of the Church Committee (the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities) contained in its 1976 report, and it is bolstered by an FBI internal memo in July 1966 saying that “we [the FBI] do not obtain authorization for ‘black-bag’ jobs from outside the Bureau.” Such methods, the memo continued, are “clearly illegal,” though an “invaluable technique in combating subversive activities.”
But if the Attorney General was not involved in authorizing black-bag jobs, he had been involved in authorizing bugging, and the latter, like the former, usually involved surreptitious entry. Indeed, one could argue that a break-in for the purpose of planting a bug was a greater invasion of the privacy of a person because the microphone would pick up everything said in the room, whereas an entry for the purpose of obtaining documents would only compromise a person’s privacy to the extent that there were documents in the room of interest to the FBI. If these distinctions—or lack of distinctions—were ever talked out in the Department of Justice, there is no published record of it.
In 1966, Hoover ordered an end to black-bag jobs, repeating his orders in January 1967 with a memo stating that he did not intend to approve any more such requests. Apparently, however, some entries continued into 1968, but by then the practice had in fact ended, according to sources both within the Bureau and on the staff of the Church Committee. Before the resumption of the methods in the early 1970’s, several important legal developments had occurred.
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In the late 1960’s, the Supreme Court began to restrict significantly the power of the government to use various surveillance techniques. In 1967, it ruled that both wiretaps and bugs were searches within the meaning of the Fourth Amendment and thus would have to be “reasonable” and based on a judicial warrant. Congress responded by passing Title III of the Omnibus Crime Control and Safe Streets Act of 1968 which set up a procedure whereby federal law-enforcement agencies desirous of using a wiretap or a bug would apply to the Attorney General for permission, who in turn would authorize an application for a warrant from a federal court. These became known to investigators as “Title III’s,” and the FBI as well as other federal agencies began using the Title III procedure to gather evidence for criminal proceedings.
A title III tap or bug would not ordinarily be appropriate in an intelligence case, however. For one thing, a Title III electronic surveillance can only occur if a judge finds that there is probable cause to believe that the person being tapped or bugged has committed, or is about to commit, a federal crime, that the information obtained will bear on that offense, and that the location at which the tap or bug is installed will be used in the commission of the crime. Intelligence gathering, however, is not ordinarily based on the belief that a crime has occurred or is about to occur. Rather, intelligence work seeks, among other things, to find out if there are grounds for believing a crime is in the offing. For example, one might wish to learn what relationship exists among persons reputed to be members of organized crime or to discover the pattern of associations of a person in this country with a Soviet passport who may or may not be a spy for the KGB.
Moreover, the Title III procedure requires the judge who authorizes a wiretap or bug to disclose that fact to the person tapped or bugged no later than ninety days after an application for a warrant has been denied or an approved tap has been completed. Obviously, in the delicate cat-and-mouse game of international espionage and counterespionage, it would be a little silly to send to someone you suspect of being a spy a letter that says, in effect, “We think you are a spy and we have tried to tap, or have recently been tapping, your telephone to find out if our hunch is correct.”
To deal with this, Congress put into the 1968 bill a somewhat murky paragraph saying that the law would 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, to obtain foreign-intelligence information deemed essential to the security of the United States, or to protect national-security information against foreign-intelligence activities.”
This provision was interpreted as authorizing wiretaps and bugs, without a judicial warrant, in national-security cases and in cases where there was a threat, even of domestic origin, of the forceful overthrow of the government or any other clear and present danger to the structure or existence of the government. From 1968 on, the Attorney General was frequently asked to authorize warrantless surveillance in security cases. What constituted a “security case” was obviously a matter of interpretation unconstrained by any statutory language. During the Nixon administration, warrantless electronic surveillance was used against the New Left, the Black Panthers, various journalists, certain members of the executive branch, and others.
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In 1972, the Supreme Court tightened the constraints even more. In Michigan, a person named Plamondon was arrested and charged with having dynamited the Ann Arbor office of the Central Intelligence Agency. In the legal maneuvering before the trial, the government admitted that it had placed Plamondon under electronic surveillance without first getting a warrant, relying on the national-security provision of the 1968 Safe Streets Act. The Supreme Court was asked to decide whether this warrantless surveillance was a violation of the Fourth Amendment’s restriction against unreasonable searches. The Court decided it was, and ordered the government to make full disclosure to Plamondon of his overheard conversations.
This was the famous Keith decision, now the controlling decision in matters of this sort. The Court’s view, expressed in a unanimous decision (Justice Rehnquist taking no part), was that the national-security clause of the 1968 law did not confer any power on the President and specifically did not authorize him or the Attorney General to use warrantless electronic surveillance against “domestic” threats to security of the kind presented by the behavior of Plamondon. The Court explicitly limited the scope of its decision to the “domestic aspects of national security” and refrained from saying anything about the issues that might be involved in the activities of foreign countries or their agents. Moreover, it recognized that gathering information in domestic-security cases, as opposed to instances of “ordinary crime,” might well require different procedures, and it invited Congress to define what these procedures should be. But warrantless intrusions in domestic-security cases were unacceptable. Domestic-security taps were stopped.
The effect of the Keith decision was to call into question the traditional distinction made by the FBI between intelligence and prosecution and to create in its place a different distinction, one between “domestic” and “foreign” cases. The Justice Department, following the Keith opinion, limited the use of warrantless electronic surveillance to cases involving a foreign power or its agents, though even then it defined “foreign” rather broadly—in the mid-1970’s it authorized a warrantless wiretap against the Jewish Defense League on the grounds that its protest actions directed at the Soviet Union were jeopardizing our relations with that country.
President Carter accepted the domestic/foreign distinction when he issued his executive order on January 26, 1978 defining the duties and responsibilities of various intelligence agencies. It set forth a series of restrictions on surveillance techniques—essentially, requiring each to be based on a warrant issued by a judge when the object of these techniques was a “United States person.” A United States person is a citizen of the United States, an alien lawfully admitted for permanent residence, or an American association or corporation. Surveillance without a warrant—including placing bugs and presumably carrying out black-bag jobs—could only occur if the object were not a United States person or if the Attorney General had determined that the United States person was “an agent of a foreign power.”
Congress now has before it a bill, already passed by the Senate, that would in effect replace this executive order with a law covering many of the same topics and creating new machinery to deal with the same issues. It also is based on the domestic/foreign distinction but differs from the executive order in that it would require the issuance of a special kind of warrant, from a specially created court, for surveillance in national-security cases. (The requirement to show “probable cause” and to disclose the surveillance that governs the use of taps and bugs in ordinary criminal cases would not exist in the foreign-power cases.)
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The black-bag jobs that Gray, Felt, and Miller are charged with having authorized all occurred after the Keith decision was handed down, and they were directed at an organization—the Weather Underground—not very different from the group that worked with Plamondon in dynamiting the CIA office in Ann Arbor: presumably domestic in nature and thus, according to the Keith ruling, covered by the constitutional requirements that a warrant be issued before the search is conducted.
A central issue—in the trials to come, perhaps the issue—is why these black-bag jobs were carried out after Hoover had earlier ended them and after the Supreme Court had made it clear that it would not accept an “intelligence” justification for them.
Persons in the Bureau and officers of the Society of Former Special Agents have argued that those who carried out the break-ins were doing exactly what the White House and the Attorney General wanted. The present Attorney General, Griffin Bell, has stated that he has found no evidence of any higher authority for the break-ins. Tom Wicker in the pages of the New York Times has scorned as a “Nuremberg defense” the arguments of Miller and Felt that they had authority; William Safire, in the pages of the same newspaper, has called Gray a scapegoat and President Carter a hypocrite.
I have recently had occasion to study the criminal-investigation procedures of the FBI, and have come to one conclusion that I admit colors my judgment of the present case, even though I can claim no special knowledge of it: important, politically sensitive actions in the FBI rarely occur by accident or in a fit of absent-mindedness. I am inclined, in matters of this sort, to look for a Prime Mover.
The black-bag jobs began again, so far as we can determine, in the early 1970’s. The only relevant events that occurred at about the same time were the drafting of the Huston Plan in 1970 and the death of Hoover in 1972. In June 1970, an Interagency Committee on Intelligence, of which Hoover was a member, sent to President Nixon a report on the threat posed by militant New Left and black extremist groups. The FBI made it clear that it opposed reinstituting black-bag jobs (it also opposed covert mail openings). Tom Charles Huston, the staff assistant to President Nixon who was responsible for directing the committee’s work, complained bitterly and at length to his superior, H.R. Haldeman, about what he called Hoover’s “totally unreasonable,” “detrimental,” and “specious” objections to every suggestion for improving domestic intelligence. Huston urged Haldeman to urge the President to overrule Hoover and direct him to comply with the plan for expanded intelligence work.
The published record, collected by the staff of the Church Committee, does not make clear what then happened. On July 14, 1970, Haldeman wrote Huston that “the recommendations you have proposed as a result of the review have been approved by the President,” apparently an indication that the Huston Plan was to go into effect. Huston then drafted a memo to Richard Helms reporting that the President had decided to remove restrictions on, among other things, surreptitious entries. But on July 27, Hoover wrote to Attorney General John Mitchell (who, strangely, had not been informed of the plan), indicating his disagreement with the plan and stating he would comply only if he received “specific authorization” to use the more sensitive investigative techniques.
The record does not show what Mitchell’s response was, but in August of that same year, we find Huston writing to Haldeman about how he might handle a forthcoming meeting with Mitchell and Hoover which was apparently called for the purpose of getting Hoover to go along with the new policies. Thereafter, the public documentary record runs out.
Members of the Justice Department have told me they can find no record that Hoover was finally ordered by Mitchell or Nixon to resume black-bag jobs. The records of the Church Committee show no such order. The FBI has not produced a document confirming such an order to Hoover. And the popular belief, as well as the view of members of the Church Committee, is that the Huston Plan was never implemented.
But was it? Proving that something did not happen is often impossible. In this case, there remain some grounds for believing that Hoover may have received and acted on orders calling for black-bag jobs. John Dean was later to testify that he thought the Huston Plan had gone into effect, and he was a member of the Intelligence Evaluation Committee. Perhaps most troubling is the statement attributed to William C. Sullivan, former head of the Domestic Intelligence Division of the FBI, that Hoover had said that break-ins were to be approved. Sullivan, unfortunately, was killed in a hunting accident and cannot testify. After Hoover died in May 1972, the matter rested with Gray. He has said he never knowingly authorized any illegal conduct. Felt and Miller have said publicly that he did. The Justice Department, in its indictments, refers only to documents prepared and decisions made after Gray became acting director of the FBI.
Ironically, it was the Justice Department’s premature and ill-advised indictment of John Kearney, the agent in charge of Squad 47 in the New York field office—the squad responsible for the Weather Underground cases—that led to the documents being discovered on the basis of which Gray and the others were indicted. When Kearney’s lawyer, Edward Bennett Williams, filed a discovery motion on behalf of his client, agents in the Bureau went to work with more than ordinary zeal to find evidence that would show, at a minimum, that Kearney was acting on higher orders. Obviously, the Justice Department feels they found it, because the Kearney indictment has been dropped.
But now a further irony: sixty-eight agents who had worked on the Weather Underground case, including some who may have dug out the documents implicating Gray and the others, now face disciplinary action and the strong possibility of civil suits for having followed orders. (Under current law, an FBI agent who acts illegally is personally liable for damages if a judge rules against him in a civil action.) One reason for the impassioned hostility of the agents to the current prosecutions, in addition to the belief that what they did was right, is that the government is throwing them on the mercy of whatever personal-injury lawyers the victims of the break-ins might hire, and raising the possibility that deeds carried out in the belief that they were proper may at some future time be found improper and thus legally actionable.
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The central policy issue will probably not be resolved by the trial, however, and that, of course, is the question of whether black-bag jobs ought to be allowed at all.
The absolutist position—that breaking into private premises without a warrant is never justified—seems to have relatively little support in the executive branch or in Congress, though, as we shall see, it has a good deal of support in parts of the federal judiciary. W. Mark Felt has publicly admitted that he approved an FBI black-bag job at the Arab Information Center in Dallas in the fall of 1972 in an effort to find clues as to possible Palestinian terrorists in the United States. The Justice Department knew this, yet did not make it part of the indictment against Felt and the others. The reason, one presumes, is that such a break-in met the “foreign-agent” test of the Keith decision.
Moreover, in the back-alley struggle with foreign-intelligence agencies, break-ins are a fact of life. No one wishes to talk much about this, but it is obvious that it will be easier for the National Security Agency to crack a foreign code if a federal agent has placed in its hands a copy of the code book. These code books are not for sale at Brentano’s.
The Senate, in approving the wiretap bill by a vote of 95 to 1, has clearly given its blessing to the foreign-agent exemption from normal warrant procedures. Though called a wiretap bill, in fact it covers much more than the interception of telephone communications. It will allow federal agents to engage in almost all forms of “technical coverage” of persons falling under the foreign-agent classification, provided that the agents first obtain the permission of a specially constituted court that will not be required to follow the normal standards governing the issuance of warrants in criminal cases or to issue notification to the party under surveillance. Technical coverage includes beepers to trace vehicles, hidden cameras, and bugs, as well as phone taps. To place the cameras or bugs, a surreptitious entry will obviously be necessary.
If the Senate is prepared to support this, it is hard to see why it would not also support a break-in for the purpose of a physical search. Indeed, as I have already pointed out, a search involves a lesser intrusion into the lives and privacy of the residents of a home or office than a hidden bug or camera. The latter will record everything that transpires in the room, whether or not it is related to an intelligence matter. A search, by contrast, can only pick up documents or other physical evidence; it cannot record the love life of the occupants.
One reason why searches have been given less careful attention by legal draftsmen may be that black-bag jobs have acquired so sinister an implication, by virtue of their use by the “Plumbers” who broke into the offices of Dr. Lewis Fielding (hardly a “foreign agent”), that no one wants to face the question of the circumstances under which they might be legal. Wiretaps and bugs, though controversial, have been associated with success as well as embarrassment—for every American journalist improperly tapped, there have been dozens of organized-crime leaders, drug dealers, and foreign spies who have been properly tapped.
In addition, the Bureau itself has always maintained that black-bag jobs were illegal and has rarely, if ever, sought permission from the Justice Department to carry them out. By contrast, there has always been a clear written procedure whereby the Attorney General would approve or deny Bureau requests for taps and bugs, both those requiring a warrant (as in ordinary criminal cases) and those done without a warrant (under the “national-security” exemption in the Safe Streets Act). What has been routinized becomes familiar and acceptable, and thus more easily dealt with when Congress decides to clarify the law on such matters.
It is interesting to speculate about what might have happened had the Bureau sought Justice Department permission for warrantless searches as it had sought it for warrantless bugs. On May 9, 1975, the Justice Department wrote to the United States Court of Appeals in the District of Columbia, which was then hearing an appeal of the conviction of John Ehrlichman for his involvement with the “Plumbers,” stating: “It is and has long been the Department’s view that warrantless searches involving physical entries into private premises are justified under the proper circumstances when related to foreign espionage or intelligence.” (The letter went on to add that the Fielding-Ellsberg break-ins were “plainly unlawful.”) A senior Justice Department official recently told me that if the Bureau had made requests for authority to carry out black-bag jobs in suitable cases, it might well have received it.
Instead, the Bureau had a procedure designed to put such techniques in the worst possible light. When the special agent in charge of a field office wanted to use a black-bag job, he requested permission from an assistant director at FBI headquarters. The request was then sent to Hoover (or his deputy, Clyde Tolson) for decision. If approved, the authorizing memo was marked “Do Not File” and kept in special safes in headquarters and in the field for no more than one year (in order to accommodate the needs of FBI inspectors who annually reviewed field offices to make certain, among other things, that nothing was being done without headquarters approval). Thereafter, the “Do Not File” memos were destroyed. Hence, not even the record-conscious Bureau has any accurate count of how many black-bag jobs were authorized. It was this procedure that Hoover terminated in 1966 when he decided to end break-ins.
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Suppose one is willing to grant that break-ins, whether to install a bug or photograph a document, are proper, under reasonable controls, in foreign-intelligence cases. Are they ever proper in other cases? That, of course, is the substantive question raised by the Weather Underground investigation.
The members of the Weather Underground were all American citizens. They were also a violent, terrorist group that made and planted bombs. The Keith decision, and the Senate wiretap bill, base the applicability of Fourth Amendment requirements for warrants on the domestic/foreign distinction, not on a distinction between ordinary criminals and a terrorist conspiracy. The FBI agents who are protesting the indictments of their former leaders believe that the latter distinction is at least as important as the former. And the discovery motions that the lawyers for Gray, Felt, and Miller will no doubt file will seek documents to show that the Weather Underground had substantial foreign connections.
William Safire has argued, without indicating what evidence he has, that such a foreign connection existed, specifically with Al Fatah. Persons within the Bureau itself have suggested that documents may be produced showing ties between the Weather group and both the Cubans and the PLO.
The courts will have to decide what significance, if any, to attach to such evidence. There is no existing legal standard by which one can easily judge whether an American citizen has ties sufficiently close to a foreign power to make him an agent of that power. Is a Soviet agent only someone on the full-time payroll of the KGB or one who regularly meets with a Soviet courier to drop off secrets? These are the conventional images of an “agent.” But what of someone who travels to a foreign country to receive training, or who accepts foreign money to cover the expenses of his organization, or who secretly collaborates, without pay, with foreign powers in the pursuit of their policy objectives? At the extremes, the distinctions are easy to make, but in the middle, where several American dissident groups may well belong, the distinctions will be maddeningly difficult.
And there is no guarantee that the courts will accept the “foreign-power” exemption even if the facts show that a person was in some sense an agent. In the 1975 Zweibon case, the Court of Appeals in the District of Columbia suggested that even national-security investigations may require a judicial warrant: “Absent exigent circumstances [such as an imminent threat], 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.” In reaching this view, Judge J. Skelly Wright rejected the arguments traditionally advanced for warrantless national-security surveillance—that the courts are not competent to judge such matters, that the need to obtain a warrant will lead to security leaks, that there will be undue delay, or that there is a significant difference between gathering intelligence and collecting evidence. Since other circuit courts have reached different conclusions, and since even the District of Columbia circuit was divided in its opinion, it is possible the Wright view will not prevail should the matter reach the Supreme Court. But it is also possible that it will.
In short, the foreign/domestic distinction may turn out to be as vulnerable to court challenge as the earlier intelligence/evidence distinction. If all distinctions are erased and all searches or intercepts must meet the same standards for obtaining a judicial warrant, then law enforcement will face some grave difficulties.
They arise from a little discussed feature common to both the Weather Underground and the foreign spy cases. To obtain a judicial warrant, whether for a search, a tap, a bug, or an arrest, an investigator must show that he has probable cause to believe that the person in question has committed, or is about to commit, a crime or has in his possession the fruits of a crime. Except in those cases where somebody has witnessed the crime, the showing of probable cause typically depends on having a reliable tip from an informant. This is especially the case if the crime in view is the product of a conspiracy.
Certain groups are less vulnerable to being penetrated by, or deceived by, an informant than others. Among these are domestic political revolutionaries, especially those with strong feelings of mutual solidarity, and foreign spy rings. Whereas a member of a gang of bank robbers might be induced to give information in exchange for money or leniency, a revolutionary or a spy might have a price no government could pay. Domestic-security wiretaps are often for the purpose of gathering just the sort of information that cannot be obtained from an informant.
Yet even if one recognizes, as some judges seem unable to do, that there are reasonable grounds for warrantless surveillances in some cases, one would nonetheless worry about leaving the authority to decide when to use such techniques entirely in the hands of the President or the Attorney General. President Nixon and his associates abused precisely that discretionary authority, thereby lending substance to the fears of those who had earlier questioned the national-security exemption in the 1968 Safe Streets Act.
The need is to supply an independent review mechanism that can prevent unjustified or political uses of the national-security authority without at the same time having to follow the same standards now governing the issuance of warrants in ordinary criminal cases where prosecution, not intelligence, is the goal. The Senate wiretap bill does just this, though without dealing with the problems of physical searches or of domestic terrorist groups. Whether it will survive House scrutiny and judicial challenge remains to be seen.
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Democratic societies find it difficult to make decisions on matters that require one to consider the view that the Constitution cannot always be the sole guide to permissible government action. On balance, that is probably a fortunate bias when one considers what has been done throughout history in the name of raison d’état. But we cannot leave matters at our revulsion against arbitrary power. Terrorism and espionage are ominous facts of life, drawing equally on “domestic” and “foreign” persons with little regard for the niceties of citizenship. Just as there has been a “clear and present danger” test by which to judge the scope of the First Amendment’s guarantee of free speech, there may also have to be such a test in judging the Fourth Amendment’s prohibition against unreasonable searches. It ought to be possible for Congress to devise such a test and create independent machinery to apply it without having to defend the increasingly dubious proposition that foreign agents are of necessity more dangerous than domestic terrorists.
