'Big Brother' in the Justice Department

...The All Purpose Cover The Court recognized that open-court disclosure, because of its effect on national security or on innocent third parties, might force the Government to choose the alternative of dropping a prosecution...

...Familiar language, up to a point...

...An apparent loophole was provided in the 1968 crime act which exempts national security surveillance from warrant requirements, authorizing 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...

...Authority is claimed to stem from a 1940 memorandum from President Franklin D. Roosevelt to then Attorney General Robert Jackson permitting agents to employ listening devices to obtain information from conversations between persons suspected of "subversive activities against the Government of the United States...

...Certainly, the Black Panthers are routinely tapped...

...No one except the prosecution knows to this day whether Federal or Cook County authorities did the eavesdropping or what they heard...

...Two factors are important by way of background—the basic concept of "national security" wiretapping, and some Supreme Court decisions which, until early 1969, both limited the scope of Government eavesdropping and required the disclosure of illegal wiretaps in open court...

...The petition claimed the Government would invariably be forced to drop prosecutions rather than disclose its surveillance...

...So it was last January for U.S...

...Congress should do its bit, quickly...

...What brought the Justice Department to this position...

...He wrote: "The Constitution . . . was written so as to strike a balance between the protection of political freedom and the protection of the national security interest...

...Attorney General Mitchell has said that during his tenure the Department has reduced the number of taps for "foreign intelligence" reasons, apparently referring to embassy surveillance in Washington, because many proved to be unproductive...

...Through examination of the logs and questioning of agents it is possible to find out sometimes whether previously concealed interceptions exist...

...Unavoidably this is a matter of judgment, but in our view the task is too complex, and the margin of error too great, to rely wholly on the in camera judgment of the trial court to identify those records which might have contributed to the Government's case...

...Bits of overheard conversation might mean nothing to him, whereas a defense lawyer might recognize them as significant in his client's case...

...So far, one might say the score is encouraging—two to one against the Justice Department...

...In an interview with United Press International, Deputy Attorney General Richard G. Klein-dienst said, "The whole question of internal security is not a divisible subject matter...

...This caused its subsequent dispute with Rbbert F. Kennedy over whether such usage was authorized...

...While the 1968 "Safe Streets" Act's wiretapping section required law enforcement agencies to report the number of eavesdropping warrants issued in regular criminal investigations, it specifically exempted national security wiretaps from public scrutiny...

...It is, so far as one can determine, a legal device created simply to serve the Justice Department's purposes at this particular moment in history...

...It is impossible even to guess at the present scope of "domestic subversive" wiretapping...

...In effect, the Government was insisting that Smith and the Panthers represented a threat to the national security and therefore could be subjected to electronic eavesdropping without a court warrant, just as can those suspected saboteurs, spies, and foreign intelligence sources who, in the customary sense of the phrase, are regarded as "national security" threats...

...Attorney Thomas Foran, prosecutor in the "Chicago 8" case...

...then it argued that a trial judge should privately examine the eavesdropping logs and turn over to defendants only those materials "arguably relevant" to the evidence...

...But there are indications that within the Justice Department the phrase "national security" has been used for years to cover a broad range of wiretapping...

...Judge Hoffman postponed a decision on disclosure until after the trial...

...Former Attorney General Ramsey Clark states somewhat cryptically in his book, Crime in America, "It was this play on the words 'national security' that the FBI relied on to claim justification for electronic surveillance of organized crime...

...He added: "The Government seems to approach these dissident domestic organizations such as the Black Panthers in the same fashion as it deals with unfriendly powers...

...Washington said I couldn't say anything...

...The practice was approved subsequently by President Truman and, according to the Justice Department, by every Attorney General serving since 1940...

...But others, the Attorney General acknowledged, had been picked up in the course of gathering intelligence "concerning domestic organizations which seek to use force and other unlawful means to attack and subvert the existing structure of the Government...

...District Judge Warren J. Ferguson of Los Angeles when it came time to rule on a peculiar contention of the Government in the case against Melvin Carl Smith...

...My dear, anybody who's not paranoid in Washington is crazy" It would be far better for Congress to bite the bullet and resolve once and for all what the Executive branch's agents can and cannot do in the national security field...

...It seemed the only possible approach in the light of the Alderman-1vanov decision...

...It was a devastating reversal for the Department of Justice...

...It apparently has been used to embrace even the Mafia and other criminal organizations...

...But, Justice contended, the wiretaps were legal because they had been undertaken in the interests of "national security...

...Surveillance in the Los Angeles Panther case was not even reported until Smith's case was on appeal...

...The Justice Department also is claiming this heretofore unknown privilege in the case of Lawrence Plamondon, minister of defense of the minuscule White Panther Party, who is accused of plotting to blow up a Government building...

...An apparently innocent phrase," the Court said, "a chance remark, a reference to what appears to be a neutral person or event, the identity of a caller or the individual on the other end of a telephone or even the manner of speaking or using words may have special significance to one who knows the more intimate facts of an accused's life...

...It is a case in which the chicken thieves are clearly in charge of the hen house," says Michael Tigar, a UCLA law professor and expert in Government wiretapping techniques...

...Nothing in the language of this and other Supreme Court decisions, however, seems to envisage surveillance of what are now called "domestic subversives...

...You can't divide subversion into two parts—domestic and foreign...

...But as a practical matter, a defendant is more likely to know when his apartment has been rifled than when someone is surreptitiously listening in on his private telephone...

...In the context of the eavesdropping Kleindienst was trying to justify, therefore, that there is no difference between, say, Rennie Davis and some Soviet agent suspected of swiping military secrets...

...If the Government chooses to snoop electronically on so small and insignificant a group as Plamondon's White Panther Party, the net seems to be cast far and wide...

...It was promptly announced that the Justice Department would take the rare step of petitioning for a rehearing...

...He claims that the adversary hearing, which judge Hoffman and the Justice Department wanted to deny, is essential...

...Such a doctrine, he wrote after the case had been remanded to him, would permit the Justice Department to "ride roughshod over numerous political freedoms which have long received constitutional protection...

...The origins of the Mitchell doctrine are obscure...

...Some of the defendants' telephone calls had been intercepted in previous years, it appeared, and Justice was now hesitant to prosecute...

...How deceptive that may be soon became apparent in the Chicago conspiracy case when the Government turned up on the first day of trial with even more wiretap logs than it had referred to in its response to the defense request for disclosure...

...That determination would be made only by a judge in the isolation of his chambers—presumably trying to match the FBI's logs or taped conversations against thousands of pages of testimony...

...By inaction, Congress is permitting precisely what Judge Ferguson warns us against—the erosion of freedom to protect some vague concept of "national security" as defined by the investigative bureaucracy and Attorney General Mitchell...

...Full disclosure, the Government argued, might jeopardize informants' and agents' lives and risk divulging national security secrets...

...Mitchell invoked it against some of the "Chicago 8" defendants, and Federal Judge Julius J. Hoffman obligingly went along...

...Judge Ferguson and a U.S...

...Only recently has the Department explained in blunt language that it considers that domestic subversives are to be regarded in the same manner as foreign adversaries when it comes to using wiretaps...

...The President, it was argued, has inherent powers to authorize agents to conduct such wiretapping when the national interest is at stake...

...five of his conversations had been overheard...

...The decision involved two cases—that of Willie Alderman, a Chicago hoodlum, and Igor A. Ivanov, a Russian espionage agent...

...No Supreme Court decision even hints that "national security" wiretaps might be legal when used against purely domestic organizations...

...In the meantime, the FBI would continue business as usual...

...Since Seale had been either in the Federal lock-up or in the Cook County jail from the beginning of his trial until his contempt conviction, that disclosure could only mean he had been wiretapped or bugged while in custody of either local or Federal authorities...

...Judge Ferguson, his opinion suggests, was outraged...

...That assumption, however, did not take into account the inventiveness and determination of Attorney General Mitchell...

...The indictments had been voted by a grand jury, news stories said...

...Really nothing," he answered...

...All these were neatly sealed in envelopes for the court's perusal—but not for disclosure...

...he finally ruled, just before sentencing the defendants, that the Government's surveillance was legal, and that the Executive branch possessed authority to listen in on domestic subversives as well as suspected foreign spies...

...Usually, theirs is a task ,of weighing one familiar precedent against another familiar precedent and deciding which most precisely fits a given case...

...One reason for the frantic reaction, it soon became clear, was one particular case in which the Justice Department had an overriding interest—the "Chicago 8." In early March, news leaks in Chicago had surfaced which indicated that within a matter of days eight of the dissidents active in demonstrations outside the 1968 Democratic National Convention would be indicted for conspiring to cross state lines to incite riots...

...District judge in Michigan have held that the domestic subversive wiretaps are unconstitutional abridgements of the Fourth Amendment...

...When that happens their reaction is likely to be one of astonishment, if not incredulity...

...But so far the Government has not cited that language in court to justify any of its surveillances...

...hence, none need be dealt with in open court...

...It cited as examples the urban riots which had required suppression by Federal troops: "Faced with such a state of affairs, any President who takes seriously his oath to 'preserve, protect and defend the Constitution' will no doubt determine that it is not 'unreasonable' to utilize electronic surveillance to gather intelligence information concerning those organizations which are committed to the use of illegal methods to bring about changes in our form of Government and which may be seeking to foment violent disorders...

...If the Government acknowledges that he has been, he may not know whether he is being informed of all the occasions...

...Both kinds, Mitchell contended, were legal...

...The argument has been going on among justices of the Supreme Court for years, but always it has been couched in language referring only to agents of foreign governments—the "spies and saboteurs" to whom Justice Douglas refers...

...there was no reason for granting a new hearing to determine wrhether any of the evidence used against Smith was tainted by or illegally derived from the snoopers' information...

...Some of the interceptions occurred in the course of gathering foreign intelligence...

...Without the hearing, he has to take a prosecutor's word, and even the prosecutor may not know the full extent of FBI surveillance...

...A judge seated alone in his chambers, said the Court, could not possibly evaluate every comment picked up on a hidden microphone...

...Judge Hoffman held they are legal under the President's inherent power to protect the national security...

...it seems to have emerged full-blown, without precedent or legal authorization...

...In June, responding to the defendants' request for disclosure of surveillance records, the Justice Department filed with the Federal District Court a unique document containing the first notice of the new "Mitchell doctrine...

...Rather than reveal such high classified information as to who the Federal agencies have under their magnifying glass, the Government quickly abandoned their plan to indict the demonstrators on March 11," wrote one Chicago reporter who had particularly easy access to U.S...

...Lawyers who have successfully probed some of the depths of Government wiretapping in court hearings say that adversary proceedings are absolutely necessary if a defendant is ever to know even how frequently he has been bugged...

...Nevertheless, the indictments were shortly announced, and it appeared that the Justice Department was going to take the risk: prosecute and agree to disclose the wiretap logs...

...Both had been convicted and both were claiming the right to examine surveillance logs in an effort to demonstrate tainted evidence...

...It derives from the President's inherent authority as chief executive to protect the national interest—or so the Justice Department contends...

...It is a rare instance when they confront some drastically new concept of the law, particularly one offered by the United States Government...

...District Judge Julius J. Hoffman, he said, should examine them in his chambers...

...The Supreme Court set out in its opinion what ground rules should be followed by the trial court in settling the question...

...the only question was when they would be announced...

...And since Justice chooses to place domestic subversives and foreign intelligence sources under the same umbrella of national security, there is no way of telling how many persons or organizations the Justice Department deems it necessary to snoop upon...

...This revelation occurred at least three months after pre-trial arguments and briefs were received on the originally known taps...

...I also asked what would prevent the FBI from failing to disclose a tap to the prosecutors, thus preventing the most honorable among them from telling the defense of possibly tainted evidence...

...It is unfair and undemocratic to expect th e judiciary alone to stop Big Brother...

...The Los Angeles case and certain evidence arising in the New Haven trial (the case of the murder of Alex Rackley) indicates that Panther headquarters from New Jersey to California are tapped...

...District Court as a felon illegally possessing firearms, one of those infractions with which judges are all too familiar...

...Since it was all legal, the Government said it should not have to disclose in court any of the overheard conversations...

...He, his lawyers, and the general public must take the Justice Department's word that even the existence of any or all wiretaps is being made known...

...Then came the Alderman-1vanov decision, and suddenly the press leaks took on a different tone, a tone suggesting near panic...

...The net effect of all that the Government claims to be its privilege can be summarized in this way: the defendant may or may not know he has been bugged at all...

...To guarantee political freedom, our forefathers agreed to take certain risks which are inherent in a free democracy...

...But in another area of eavesdropping, the Court has moved forcefully in recent years to fill an equally important gap...

...Attorney James R. Thompson rather plaintively told The New York Times...

...But when his case was appealed to the Ninth U.S...

...It noted that the Government probably would choose to drop some prosecutions rather than disclose its secrets in court...

...Thus, anyone could attain perpetual immunity, it argued, simply by telephoning a place (such as a hostile nation's Washington embassy) likely to be wiretapped...

...The Chicago indictments had been held up at the Justice Department's requests, according to Washington sources...

...Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers . . . , I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights [against unreasonable searches] is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate...

...It's just as if they [the FBI] illegally broke into a house and searched it without a warrant, and then turned over evidence to investigators or the Government who unknowingly used it in building a case...

...To preserve a sense of symmetry, eight Chicago policemen also would be indicted...

...Yet, no one informed him of this until long after his conviction...

...Legally, perhaps...

...It is unthinkable that we should now be required to sacrifice those freedoms in order to defend them...

...But," it said, "this is a choice the Government conceded-ly faces with respect to material which it has obtained illegally and which it admits, or which a judge would find, is arguably relevant to the evidence offered against the petitioner...

...But he also said recently that the number of surveillances has increased in domestic security cases...

...Circuit Court of Appeals, the U.S...

...He added: "It would be silly to say that an American citizen, because he is an American, could subvert the Government by actions of violence and revolution and be immune from first, identification, and second, prosecution...

...Government disclosed something it had not revealed during the trial: Smith had been subjected to repeated Government eavesdropping...

...I checked with Washington just a little while ago to see whether I could say what they aren't...

...constitutional and the Government was ordered to disclose the surveillance records to Smith and his lawyer in advance of a new hearing...

...Under the Alder-man-Ivanov ruling, it would either have to disclose the logs of those interceptions in open court, risking publicity on its surveillance activities, or drop the prosecution...

...There is, furthermore, circumstantial evidence indicating that law enforcement agencies do not report to the Justice Department attorneys all the tapping and bugging they have done...

...The Government's position, at first, was that the Justice Department alone should decide whether any evidence illegally obtained was tainted...

...It is worth noting that the alleged "domestic subversive" secretly wiretapped without court authorization is completely at the Government's mercy from the beginning...

...Some, it turned out, had been deliberate surveillance of the defendants and this, too, was legal, said the document...

...Unless Congress legislates against the "Mitchell doctrine" and the practice of ever-expanding electronic eavesdropping, the era of Big Brother will be at hand in full force, and freedom will have been sacrificed in the name of "national security...

...Then it added: "We submit that similar considerations compel the conclusion that the President also has the constitutional power to authorize electronic surveillance to gather intelligence information concerning domestic organizations which seek to attack and subvert the Government by unlawful means.9' At large in the country, the Justice Department's response continued, were organizations which "intend" to use force to "attack and subvert the existing form of our Government...

...But by the time those cases are decided, the Justice Department will be able to fall back on the language of the 1968 act providing a national security exemption from court warrants, and so a whole new round of litigation could begin...

...The Government cannot act in this manner when only domestic political organizations are involved, even if those organizations espouse views which are inconsistent with our present form of government...

...I once asked a former Justice Department attorney how the citizen-defendant is to know whether all of the eavesdroppings on him have been produced...

...Moreover, the Government insisted that because its agents had listened in for the purpose of protecting the national security, it was all proper and legal...

...I don't have authority to say what they are," U.S...

...But not all of the taps and/or bugs had involved foreign intelligence surveillance, the Government's response said...

...Attorney in Chicago acknowledged Seale had been subjected to electronic surveillance "relevant" to his contempt conviction...

...In Chicago, nearly seven months after Bobby Seale had been sentenced by Hoffman for contempt of court and separated from the other defendants for a later trial, the U.S...

...Contrary to widespread opinion, even the original concept of "national security" wiretapping has not been approved by the Supreme Court...

...It is the law, the Justice Department now seems to be saying, because it is convenient...

...All had been authorized by attorneys-general...

...So the question of "national security" tapping has been left in a legal vacuum...

...In the mid-1960s, the Justice Department began voluntarily disclosing instances in which agents had illegally eavesdropped on persons subsequently convicted of crimes...

...What Judge Ferguson had bumped up against is the "Mitchell doctrine" of electronic eavesdropping, named for Attorney General John N. Mitchell, who has advanced this novel concept in a number of cases involving left-wing dissidents...

...In a key 1967 case, which did not directly involve national security eavesdropping, Justice Byron R. White wrote a concurring opinion specifically to make the point that the Court should not require a warrant for eavesdropping "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...

...All three cases are on appeal...

...It might well begin with Judge Ferguson's opinion...

...But the number undoubtedly is considerable...

...Defendants logically argued that the logs of illegal wiretaps should be opened up for them for a full adversary hearing before a trial judge, giving them an opportunity to demonstrate that some evidence was "tainted" because it was the product of illegal eavesdropping...

...They come forward and say, 'Well, here it is—these are all the chickens we stole,' and then you hear all that other clucking going on, and you begin to wonder...

...His reply was crisp and dripping with righteous certitude: "The Department's position is just that it must be taken on faith...

...Thus, in bland, dry legal language, the Mitchell doctrine was born...

...Attorney General Mitchell protested to a Senate committee that in some of the pending cases "national security is involved, and in some other instances the very life and existence of witnesses are involved...

...His lawyers would not be entitled to argue and probe in open court to discover whether his overheard conversations produced leads to the evidence used against him...

...The Supreme Court obviously is divided even on this basic issue...

...On March 10, 1969—and that date is significant—the Supreme Court resolved the disclosure question, or so it seemed to most who read the opinions...

...For added force, Mitchell personally attached an affidavit stating that five defendants—Rennie Davis, David Dellinger, Tom Hayden, Jerry Rubin, and Bobby Seale—had been overheard by Government agents...

...One just has to trust the FBI and the prosecutors...

...This March 10, 1969, decision exploded like a bombshell in the Justice Department's lap...

...It has never been fully litigated, and in the absence of definitive rulings Federal agents have for years tapped and bugged embassies and the telephones and rooms used by suspected foreign agents...

...Smith, a forty-one-year-old Black Panther, was one of thirteen persons arrested in 1969 following a four-hour gun battle with police at Panther headquarters in Los Angeles...

...Therefore, said the Supreme Court, trial judges should hold hearings to determine whether the electronic surveillance had violated the Fourth Amendment prohibition against illegal searches and whether any of it had produced tainted evidence relevant to the convictions...

...Thus, the question of pre-trial disclosure was decided against them even before the defendants knew how much bugging the Government had done...

...He had been convicted in U.S...

...This, in turn, opened up a vast new problem: how was the defendant to show that he had been convicted on illegally obtained evidence...

...The eavesdropping was ruled unWILLIAM CHAPAAAN is a national affairs correspondent for The Washington Post...

...Replying rather indignantly to that point, Justice William O. Douglas, joined by Justice William J. Brennan, insisted that White's position amounted to "a wholly unwarranted green light for the Executive branch to resort to electronic eavesdropping without a warrant in cases which the Executive branch itself labels 'national security' matters...

...It will be up to the Federal courts to stop the Government's onslaught against the Fourth Amendment...

...It acknowledged that several of the defendants' conversations had been wiretapped, most of them in the distant past...

...It cited the familiar arguments that all Presidents since Franklin Roosevelt had authorized electronic eavesdropping "to protect the nation against hostile acts of foreign powers...

...Repeated efforts to determine what organizations the Department considers it can justifiably subject to eavesdropping have been fruitless...