Alderman v. United States – Oral Reargument – October 14, 1968

Media for Alderman v. United States

Audio Transcription for Oral Argument – May 02, 1968 in Alderman v. United States

Audio Transcription for Oral Reargument – October 14, 1968 in Alderman v. United States

Earl Warren:

We’ll now call No. 11, Igor A. Ivanov, Petitioner, versus United States.

Mr. Williams you may continue.

Edward Benett Williams:

Thank you sir.

Mr. Chief Justice, may it please the Court.

The petitioner, Igor Ivanov, a citizen of the Soviet Union and employee of Amtorg, a Soviet Trading Company stands convicted of a conspiracy to commit espionage against the United States under Title 18 of the United States Code Section 794.

His conviction was affirmed by the United States Court of Appeals in the Third Circuit, the petition for certiorari was filed here and without detailing the intermediate pleadings, between the filing of the petition for certiorari in this oral argument, it’s surprising to say that pursuant to the order in the Kolod case, the Government conceded that certiorari should be granted that there should be a remand that the District Court for an in camera ex parte hearing with respect to electronic surveillances conducted in that case.

Now, in the brief filed in this Court in Ivanov, the Government says that conversations of each of the petitioners in these cases were overheard by the use of the electronic surveillance equipment and footnoted is this statement.

In some of the instances, the installation had been specifically approved by the then Attorney General.

In others, the equipment was installed under a broader grant of authority to the FBI and affected the time which did not require specific authorization.

Experience would indicate to us, I submit that that is a concession of both wiretapping and eavesdropping in this case.

Now, this case is significantly different from the case just argued at bar because the Government seriously averse in this case that there is a national security consideration to be waived in the balance of competing social interest.

I think it’s equally significant, if the Court please if I may say so at the outset of this argument that the Government by that reason does not ask for different treatment between Alderman and Ivanov.

It asks for precisely the same treatment, it asks for in camera ex parte proceedings with respect to the logs electronic — the logs memorandum records of the electronic surveillance in each.

Now, first of all, it is our position as the Court please that the Fourth Amendment to the Constitution does not make a division among the various kinds of crime.

It does not draw a line of demarcation and the founding fathers when the Constitution was written and when the American Bill of Rights were forged understood quite clearly that there is a difference in the various types of crime.

They gave recognition to this in Article 3, Section 3 of the Constitution when they defined treason and they prescribed the quantum and quality of proof necessary for a treason conviction.

But they didn’t make any exception in the Fourth Amendment with respect to spy catchers or subversive hunters.

Now, it’s next to our position, if the Court please, that if the Attorney General of the United States certifies to the Court that there is a national security consideration which should excuse the United States from making a disclosure with respect to the nature, the time, the place, or the fruits of an electronic surveillance illegally conducted, we say he should be excused, provided he consents to a dismissal of the prosecution under the time-honored principle of Kaplan against the United States which was decided in 1950, an opinion by Judge Learned Hand which was forced where with the facts in the case at bar.

There was electronic surveillance, there was an espionage case, there was an alleged spy, a convicted spy and the premise was articulated there that the Government had a choice of making a full disclosure to the defendant for the vindication of our constitutional rights or dismissing, the Government dismissed.

Now, that case and I think it’s significant to note has stood on a sale by the Government for 18 years until argument was heard in this case last term and that case was simply a repetition of the doctrine articulated also by the Second Circuit in United States against Anderson.

So it’s our position, if the Court please, reduced to its essence that the concept national security should not be the talisman for a pro tanto suspension of due process of law or of any of the rights guaranteed to an accused in a criminal case.

If, in the conduct of relationships between governments in our time, it has become the custom or it has become a necessity to engage in wiretapping or eavesdropping or dissembling or purloining or burglarizing or even killing, it is not our argument in this Court today that the Executive Branch should be manacled or impeded or harassed in the conduct of relationships with other governments.

It is our argument here today that at least the federal courts should be a sanctuary in the jungle, and that these morals and that these mores should not be imported into the American judiciary system and that the fruits of this kind of conduct should not become evidence in a criminal case brought by the sovereign power against an accused, nor should leads derived from this kind of conduct be available to the prosecutor in a criminal case brought by the sovereign power.

In essence, as I understand the Government’s position, in this case, it’s asserting its right to be let alone and to that we say ?Amen?, so long as the evidence is not offered in a federal criminal proceeding.

Abe Fortas:

But that’s not quite the issue is it Mr. Williams or perhaps I misunderstand, the issue is how shall it be determined whether the evidence is being offered or fruits of the unlawfully obtained evidence is being offered, perhaps I misunderstand but I thought the Government’s position was not to defend the use of such evidence but that the Government’s position was to insist that whether such evidence is being used or the fruits thereof are being used should be determined by the judge in camera.

Am I wrong about that?

Edward Benett Williams:

I think that is the Government’s position Your Honor, the Government’s position is the same in this case as it is in the Alderman case and we say that just as it is impossible for this kind of determination to be made in the Alderman case it’s equally impossible for this kind of determination to be made in camera ex parte why the judge and even though the issue may affect national security but the Government has argued in its brief at great lengths that we are seeking to impede the Government in assuring the national security and I say that we are not.

I say that we are not asking that any rules be fashioned to impede or harass the Government in the conduct of its affairs with other governments or in the conduct of its duty to preserve the national security.

We are asking for a much narrower rule.

We are asking that this kind of evidence not be offered in Court and we are saying that the same rules should pertain to this kind of evidence as obtains with respect to any other kind of evidence that there should be a disclosure.

Edward Benett Williams:

The disclosure maybe made under Rule 16 as the disclosure maybe made and any other kind of case to eliminate a necessary dissemination of the information so that our position if the Court please is that the defendant has the right to disclosure under appropriate protective orders and he has the right to disclosure to his counsel under appropriate protective orders regardless of what the nature of the information may be, regardless of whether or not it is contended by the Government that it affects national security unless the Government is willing to dismiss the prosecution in which case we agree that it should be dealt.

William J. Brennan, Jr.:

Well, then Mr. Williams, you don’t read the Government as saying, well even if in Alderman disclose it to the defense, the protective orders to take care of the problem well how it will be in that case sufficient.

We don’t — we didn’t say but nevertheless in a national security case it’s not.

There are other considerations in a national security case which argued for the in camera submission you not — you don’t read the Government as making that distinction?

Edward Benett Williams:

I don’t read them as making that distinction Mr. Justice Brennan.

I read them as asking for the same kind of proceeding in each case.

William J. Brennan, Jr.:

Well, they are —

Edward Benett Williams:

And I —

William J. Brennan, Jr.:

— forgot about this but I wondered if we’ll hear it from the Solicitor General but at least you don’t read them as saying that if — even if we lose out in Alderman, nevertheless there are elements in the national security cases which justify an in camera proceedings.

Edward Benett Williams:

I don’t read this as contending that.

They may contend it orally Your Honor.

I read them as asking for the same kind of hearing and I also contend if Court — the Court please that protective orders can be fashioned here just as in the Alderman case and if we are driven to the unhappy conclusion that the alleged spy goes free, then I think we can draw some consolation from the history of the last three decades that in three decades of recorded federal jurisprudence during which there were three wardens, we have only one instance of an averred spy going free in this frame of reference and she was the defendant in the case to which I alluded to Kaplan case, and I think we could also get a measure of consolation from the fact that of all the crimes in federal jurisprudence, the lowest amount of recidivism takes place in the area of espionage because once a spy is exposed, he is by and large diffused.

William J. Brennan, Jr.:

Incidentally, weren’t the two others involved in this case besides these two defendants?

Edward Benett Williams:

Yes.

There are two petitioners in this case.

William J. Brennan, Jr.:

I know but whether or not involved in this whole episode, others with Ivanov and Butenko —

Edward Benett Williams:

Yes.

William J. Brennan, Jr.:

Etcetera?

Edward Benett Williams:

Three others who were Soviet nationals who had diplomatic status enough to go back to the Soviet Union with our blessing.

Now Your Honor, with respect to the problems that this Court has propounded on standing in this case and the Court has propounded some hard questions with respect to the subject of standing in this case.

Now for purposes of standing, we do contend in capsulize form that a person agreed within the purview of Rule 41 is one against whom the search — the illicit search is directed whether he’s known or unknown at the time.

We say if the Court please that for purposes of standing, the concept must be considered under rule describing an aggrieved person.

We say, if the Court please, that it must considered against the fact ground of an age in which electronic surveillance has become a widespread investigative technique and we must consider it in the light of the philosophical rational for the federal exclusionary rule.

Now, rational in the federal exclusionary rule has been articulated many times by many courts as being simply that the courts recoil at the philosophic concept that the end justifies the means in the administration of criminal justice that the exclusionary rule is designed as a deterrent to lawless law enforcement.

It’s designed to discourage it and to effect compliance with the agents of the sovereign power with the law.

Now, it is our position that the rule on standing for which the Government contends is — are kept and that it is ineffective against this black ground During the early evolution of cases under the Fourth Amendment by and large, we were concerned with cases where the defendant’s constitutional rights had been invaded by virtue of the search of his premises and the seizure of his papers and his effects so that in the great majority of cases, there was not a serious problem of standing but we have passed that here on and we now have an era where electronic surveillance is used in the following manner as is illustrated by many instances in our papers.

The Government through its agents does not listen to the suspect, it does not invade his premises electronically by planting an electronic bug there rather in a very careful selective manner, it listens to the conversations of his relatives and friends and associates, and it invades the premises of his relatives and friends and associates, and it gathers criminal intelligence by this fact which it indexes and computerizes and makes dossiers until such time as it has by utilizing these leads developed a situation wherein an indictment can be secured by the presentation of some of these evidence to a grand jury and subsequently a conviction can be obtained by the use of the same evidence and that the suspect defendant is left without a remedy because the Government contends he was not victimized because he was not heard and because no premises in which he had a proprietary interest where invaded.

I suggest to the Court that the Government’s position on standing in this case with respect to electronic surveillance is like Solomon’s approach to the baby, Cut it in half!

Says the government, there are two competing social interests.

One, that the culprit should not go free, society has a major interest in this.

Edward Benett Williams:

The other, is that there should be a deterrence in illegal methods of law enforcement, the Government’s proposal would satisfy neither competing social interest, why, because it says that a selected class of culprits should go free, those who fall within their concept of the term standing but on the other hand, the green light should be flashed for a continuation of illicit electronic surveillance because this kind of activity can remain tremendously fruitful and beneficial in the gathering of criminal intelligence without giving the ultimate victim a status to object.

Now we say, if the Court please, that the time has come for standing to be given vis-à-vis electronic surveillances to the following: one, to those whose conversations are illicitly listened to and the Government does not gainsay this.

Two, to those persons whose premises are illegally invaded by electronic eavesdropping equipment and as I read the Government’s brief at page 21 in the Alderman case, it clearly does not gainsay this, of course.

As I previously read to the Court, the Government says it adheres to the position that a defendant though not a participant, if the overhearing occurred on premises owned by him or in which he had some interests, he has a standing.

Now, I suggest to the Court that one who is the subject matter of an overhearing illegal in nature must have standing if illicit electronic surveillance is to be deterred by federal agents and finally, —

Abe Fortas:

You mean the subject matter of the conversation that’s overheard?

Edward Benett Williams:

Yes, sir.

Finally, I say this, and this sounds terribly much like a simplistic approach to the problem and assure the Court that it is not a simplistic approach to the problem.

I assure you that consideration has been given to all of the competing social and legal interest in making the state.

I believe that standing must be given to a codefendant in a criminal case whether he’d be named as a coconspirator or not and I say this first of all, because it is hard to conceive that defendants can be joined in a criminal case in the federal courts under Rule 8 which provides for joinder of defendants, unless there be what could have been averred to be a conspiracy.

Why?

Because the rule provides that they must have been engaged in an act or series of acts or transaction or series of transactions constituting an offense.

Abe Fortas:

Suppose he’s a —

Edward Benett Williams:

I suggest —

Suppose he’s as a defendant being separately prosecuted in connection with the same transactions as not a codefendant?

Well, that’s why Your Honor we are driven — we are driven in order to avoid this kind of circumvention, we are driven to say that the overall position is whether or the defendant is that he has standing if the search was a search directed against him.

Abe Fortas:

So, you don’t want us to understand your —

Edward Benett Williams:

I don’t to want to —

Abe Fortas:

Category as — category as precluding your from suggesting its expansion in a later date and time?

Edward Benett Williams:

I don’t want, if the Court please or anyone to be able to do by indirection that which is inhibited directly and if the prosecutor by the simple device of not joining two persons in the same prosecution but it’s averred their proper concept of standing, then I would be oppose to that and that’s why I suggest Your Honor as an umbrella on which, under which to gather all of the kinds of electronic surveillance, the fruits of which should be excluded.

The rule that a person agreed within Rule 41 is a person against whom the electronic surveillance was directed and we all know that when an electronic surveillance is directed against the first, it is not only against him but it is against those engaged in the illicit enterprise with him whether identified or unidentified at the time when there is a monitoring, the Government is not just interested in what it hears about it wants to know about his business associates and friends and acquaintances.

William J. Brennan, Jr.:

Let’s say Mr. Williams, you don’t go as far at least as to suggest that all rules of standing in this area should be abolished and that the interests in deterrence of illegal law enforcement activity should lead us to say that the Government can never used anything that it’s obtained illegally.

Edward Benett Williams:

I’ve —

William J. Brennan, Jr.:

You don’t go that far, do you.

Edward Benett Williams:

In this case, I don’t have to go to that far, I believe —

William J. Brennan, Jr.:

When do you start —

Edward Benett Williams:

I believe Your Honor, that People against Martin which was decided by the Supreme Court of California is the proper room.

It has been adapted only by —

William J. Brennan, Jr.:

That abolished all —

Edward Benett Williams:

That abolishes all illegal evidence because I cannot believe that the Court should land itself to illegal conduct and a part of the prosecution.

Earl Warren:

Well, where do the rules you suggest?

Edward Benett Williams:

But I am not asking the Court in this year to adopt that rule.

I am asking this Court to adopt a rule which is something short of that but which I believe —

Earl Warren:

How far short of it is it?

Edward Benett Williams:

Will be an adequate deterrent to illegal eavesdropping.

Earl Warren:

But how far short of a complete abandonment of standing requirements —

Edward Benett Williams:

Well —

Earl Warren:

— you’re suggesting?

Edward Benett Williams:

It’s this far short, Your Honor that before a defendant could come in and compel that kind of disclosure that we’re talking about in this proceeding here this morning.

He would either have to have been the participant in a conversation which was invaded or he would have to have been the owner or occupant or have a proprietary interest in premises which were invaded or he himself would’ve had to be the subject matter of the conversation which was illicitly overheard or finally, he would have to be a coconspirator or a codefendant of the person who fell within the purview of that particular —

Whether or not named, I think you said —

Whether or not named I said because I think we have to go that far because otherwise, there could be a ready and easy circumvention of the rule.

I do not contend for a rule Your Honor as the Government suggests which would permit indiscriminate roguing through the Government files to find some illicit conduct on behalf of some federal agency.

I am confining it to this and I say the best capsule I summary that we could fashion to cover all of those things in one short pithy phrase and I hope it’s not an over simplification is to give standing to one against whom whether identified at the time or not the search of the government agents is direct —

Abe Fortas:

First, his codefendant —

Edward Benett Williams:

Well, I say if the search was directed against him and he’s named is a codefendant, yes.

Abe Fortas:

But it wasn’t directed against him but it was directed against his codefendant and you say that he’d still be entitled to?

Edward Benett Williams:

Yes, sir.

Whether the codefendant is named or not?

William J. Brennan, Jr.:

Well, let’s see that, Mr. Williams, suppose out in San Francisco, the Government illegally bugs a place and they happen to overhear a conversation in which John Jones name is mentioned, they weren’t looking for John Jones name and nothing whatever about John Jones.

But out of something they heard, they look into John Jones and find he’s been guilty of income tax evasion and they prosecuted him in the district for income tax evasion.

Would he have standing to?

Edward Benett Williams:

On that conversation, it would have to be turned over to him under the rule for which we contend.

If these —

William J. Brennan, Jr.:

Maybe because he was the subject matter although the Government quite was utterly innocent, even if his existence —

Edward Benett Williams:

Otherwise, Your Honor — Otherwise, I say, we cannot get effective compliance of the rule outlying electronic surveillance.

It will still become —

William J. Brennan, Jr.:

Well, that’s why I ask you how really how far short you are going of asking as to abolish all rules standing?

Edward Benett Williams:

I’m not asking that Your Honor I —

William J. Brennan, Jr.:

I know you’re not —

Edward Benett Williams:

I’m sure —

William J. Brennan, Jr.:

I’m just wondering if it isn’t tantamount —

Edward Benett Williams:

I’m asking the Court to fashion a rule of standing that encompasses the interest which I believe need to be served if we are to have an effective exclusionary rule with respect to electronic espionage because I say to the Court that it will be used because it will still be fruitful and beneficial to federal agents if —

William J. Brennan, Jr.:

But it really sounds to me at least in the area of electronic surveillance what you’re suggesting Mr. Williams is that that the only practical way of really to make deterrents meaningful is just to bar the Government from using in the electronic surveillance illegally obtained in any case.

Edward Benett Williams:

Well I —

William J. Brennan, Jr.:

But it comes to that, doesn’t it?

Edward Benett Williams:

Except we are not going to stumble into the pitfall suggested by the Solicitor General that we are asking to go to the Department of Justice and rummage through all the files which can be classified as evidence garnered illegally.

We are saying that before we have a right to have a disclosure of those materials, we must be in one of the categories —

William J. Brennan, Jr.:

Yes, but take —

Edward Benett Williams:

But you have to lineate let me in.

William J. Brennan, Jr.:

But take the case I’ve put to you.

Jones in fact was come upon through this lead and they overheard San Francisco conversation.

Edward Benett Williams:

When they process —

William J. Brennan, Jr.:

But Jones doesn’t know this.

Jones knows nothing about this.

Edward Benett Williams:

In all of this discussion that we’ve had today, every single, all of the discussion we had last term, we are at the mercy of the good faith of the mystery at agency while assuming that —

William J. Brennan, Jr.:

Well, I know, but the Government tells Jones and tells his lawyer nothing about this.

Edward Benett Williams:

We are at the mercy of the good faith of the department which we do not impute, that they will come forward under the doctrine of Kolod and say, “We heard John Jones by used of an electronic surveillance conducted in San Francisco, here’s the conversation Mr. Jones, make the most of it.”

If you can relate it to your prosecution, we’re willing to have any evidence clean thereby from (Inaudible).

If the Government doesn’t come forward and make that concession, of course it goes without saying that John Jones has no right, no way to vindicate his constitutional rights because —

Potter Stewart:

And this is what you mean Jones would not have any right to insist that the Government turned over to him information whether or not it in fact had obtained this information that way.

Edward Benett Williams:

He’d have the right to insist on it but he would — whether he would get it would be entirely dependent upon the good faith of the Government.

Potter Stewart:

Well I know, but does this mean that in every case the defense lawyer is coming — going to stand up?

We don’t know where the Government got its evidence but it maybe it got it through some lead from illicit electronic surveillance.

We want the Government to tell us whether or not it did, is that what — is that what would happen?

Edward Benett Williams:

Well the Government under Kolod has an obligation as I understand it to come forward with any evidence which relates to the defendant any evidence relating to the defendant which has been seize —

Potter Stewart:

No, but in that instance Mr. Williams.

Edward Benett Williams:

An electronic surveillance —

Potter Stewart:

Of course, the Government had initially come up with the information.

What I’m — what I’m asking you is in the Jones case is Jones’ lawyer have — does he initiate some proceeding either before trial which he insist that the government say whether or not any of this information came on such —

Edward Benett Williams:

Well, if Kolod has complied with, the Government would come forward and admit it —

Potter Stewart:

Do it voluntarily?

Edward Benett Williams:

But if it’s out of an abundance of caution that it would behoove Jones’ lawyer to ask the question as to whether or not there way any eavesdropping vis-a-vis Jones as to whether he was heard, whether his premises were invaded or whether he was the subject matter of a conversation between others who was —

William J. Brennan, Jr.:

Well, this would become I should suppose standard procedures done on every criminal case that the Government bring wouldn’t it?

Edward Benett Williams:

But I’m afraid it has to be if we’re going to effectively deter electronic surveillance.

You’re limiting, I gather, these suggested expanding of the standing rules (Inaudible).

Edward Benett Williams:

Well, I think that the same rules would apply if the Court please to wiretapping cases.

Yes —

But in New York, they do not wire and it is nothing by the rule you would not.

Edward Benett Williams:

No, I am confining all of my discussion and all of my contentions to the area with which we’re concerned Mr. Justice Harlan which is bugging, wiretapping or eavesdropping, electronic surveillance.

This is what I felt can make the same term rule as the basis of your argument that (Voice Overlap).

Edward Benett Williams:

As to the Supreme Court of California.

On the Fourth Amendment.

Edward Benett Williams:

Yes, but we are —

I’m sure you don’t want to go there.

Edward Benett Williams:

I am not asking the Court to go there.

(Inaudible)

Edward Benett Williams:

I’m asking the Court only to go so far as I have contended in cases involving electronic surveillance.

Earl Warren:

We’ll recess now.

Mr. Solicitor General, you may proceed with your argument.

Erwin N. Griswold:

Mr. Chief Justice, may it please the Court.

This is the case of Igor A. Ivanov who with John William Butenko was indicted in the District of New Jersey.

The indictment is in the record an on page 11, the grand jury charge that they and three other persons did unlawfully, willfully, and knowingly conspire and agree to communicate, deliver, and transmit to a foreign government which is named and the representatives and agents thereof directly and indirectly, information relating to the national defense of the United States of America and particularly information relating to the command and control system of the strategic air command of the United States Air Force with intent and reason to believe that the said information would be use to the advantage of a foreign nation which is named.

The other three persons had diplomatic immunity being members of a delegation to the United States; Ivanov is a citizen of the Soviet Union.

He was an employee in United States of the Amtorg Trading Corporation, as such did not have a diplomatic community.

Butenko is a citizen of the United States and the question with respect to him which is essentially the same as that with respect to Ivanov is involved in No. 197 which is the next case on the argument list.

The problem here in many respects is similar to that in the Alderman and Alderisio cases.

Most of Mr. Williams argument in this case was in fact directed to the issues in the Alderman and Alderisio case with respect to its standing, I will not undertake to discuss that any further except to point out that the statement that the overhearing in Alderman and Alderisio was on Alderisio’s business premises is one which has been made by Mr. Williams in the petition for rehearing preface to of course with we understand, it — I do not believe it can be found in any paper which has been filed by the Government except one file by Mr. Sprecher in which he quoted that passage from —

William J. Brennan, Jr.:

But the Government never undertook to say that was not the case, did it?

Erwin N. Griswold:

The Government affirm the —

William J. Brennan, Jr.:

Did not deny that the understanding is express in the petition to —

Erwin N. Griswold:

The government did not assert or deny with respect to that, it did admit that there had been electronic surveillance and in its brief filed in this Court, it did make a further statement.

Earl Warren:

What is the position of the Government today on that question?

Erwin N. Griswold:

The position of the Government today is what is stated in — but note 1 on page 2 of the Government’s brief in the Alderman case, we are advised that the places where Alderisio’s conversations were overheard were not his own but business establishments owned by associates of his or firms that employed him and that Alderisio himself did not have office space in the subject premises.

Earl Warren:

What do you mean by advised?

What do you mean, didn’t the court below assume that this or take the position with this was his business property?

Erwin N. Griswold:

Well, Mr. Justice, this issue was never been considered in anyway, shape or manner by the court below in this case.

The problem with respect to electronic surveillance of Alderisio did not get into this case until after this Court had denied certiorari.

Potter Stewart:

Well, I take it and there must be remand in this case obviously.

Erwin N. Griswold:

Oh, yes Mr. Justice —

Potter Stewart:

That’s already ordered —

Erwin N. Griswold:

We have —

Potter Stewart:

And I gather this is going to be an issue on the fact, isn’t it?

I assume it —

Yes.

And I — but does the Government think that depending on how that issue affect is resolve, there may be different standing rules?

Erwin N. Griswold:

There may be the question of standing, maybe affected by that but still to be our position that even though it is found that Alderisio has standing, the judge ought to decide in camera whether the material is relevant in any way here for the reasons developed in that argument.

Potter Stewart:

Yes.

But is there a difference Mr. Solicitor General in as to why this is relevant, the terms on whether or not this was or was not Alderisio’s premises?

Erwin N. Griswold:

I don’t really think so Mr. Justice but if he has no standing —

Potter Stewart:

This is because the Government I gather would in any event allow them only the tapes of conversations to which he was a party or of conversations in his presence even if —

Erwin N. Griswold:

It would be our position that that would be the only thing that ought to be considered.

Potter Stewart:

And this irrespective of whether it was on his — at his home or somewhere else or I guess his business premises and so.

Erwin N. Griswold:

No, Mr. Justice.

If it’s —

Potter Stewart:

It’s business —

Erwin N. Griswold:

At his home or even at his business premises or under Mancuso at a place where he has a regular desk space, it may well be — he may well have a larger place —

Potter Stewart:

He may — and he may be entitled to more of the tapes.

In other words, he may be entitled to something more than just the tapes of conversations to which he was supporting.

Erwin N. Griswold:

Mr. Justice, he may have standing but it would still be our position if the judge ought to make a preliminary determination as to whether the material has any conceivable reference to the particular case, particularly as it involves third parties.

Byron R. White:

If there’s no standing the tapes never get —

Erwin N. Griswold:

If there’s no standing on the tapes never —

Byron R. White:

Or if there’s no violation of the Fourth Amendment in the first place?

Erwin N. Griswold:

That is correct.

Byron R. White:

Well, now I’m still confused.

If this is Alderisio’s place of business, is there is it not the Government’s position that all of the tapes of all conversations must be turned over to the judge if it’s Alderisio’s place of business.

Erwin N. Griswold:

That they must be turned over to the judge.

Yes, Mr. Justice.

Byron R. White:

Right.

Now, if it is not Alderisio’s place of business, then how much of the tapes are to be turned over assuming that there are two years of tapes of some place not Alderisio’s place of business?

Erwin N. Griswold:

Well, in this particular case, there are not packing cases —

Byron R. White:

Well, whatever there maybe — whatever there maybe, you know what I’m trying to get at Mr. Solicitor General. I wish you’d help me with it.

Erwin N. Griswold:

I would like to Mr. Justice, I would think that there — if he has standing, there ought them to be turned over to the judge any records of conversations in which he was a party on either side and I am inclined to think myself any conversations which took place while he was present but I don’t know of any authority or net and I’m groping on that.

Byron R. White:

I know, but to one extent it’s whether or not the bugging was at his place of business or not at his place of business change the government’s position of what should be turned over to the judge. Well, if it was at his place of business, I would think that he had a greater — there was greater extending and greater need to turn material over to the judge — consideration —

Erwin N. Griswold:

Turn everything that — everything in —

Byron R. White:

As far as I can see everything, yes.

Certainly if it was what he suggests.

Erwin N. Griswold:

Certainly, if it was his home.

Abe Fortas:

Well, Mr. Solicitor General, I thought I understood the problem but I’m beginning to wonder Mr. Williams called our attention at page 21 under your brief in the Alderman case and I read that first paragraph to mean us this that the Alderman or Alderisio, “any defendant would be entitled to have the material turnover to him not to the judge if one, he was a participant in the conversations that were overheard or two, if although not a participant, the overhearing occurred in premises owned by him or in which he had some other interest at the time.”

I understood that paragraph to mean that the Government agreed that in either of these events not that the material was to be turned over to the judge for in camera examination but that the defendant was entitled to have him turned over to him, am I wrong?

Erwin N. Griswold:

I think you’re wrong Mr. Justice because I think —

Abe Fortas:

Is there any instance?

Erwin N. Griswold:

I think the following case will illustrate that to some extent.

Abe Fortas:

Is there any instance in which the Government says that the defendants entitled to have material turned over to him instead of to the judge for in camera examination?

Erwin N. Griswold:

Well, certainly not in the national security case which is the —

Abe Fortas:

Well, forget about the national security.

Erwin N. Griswold:

And that’s — but that is the reason why I find it very difficult to make a general answer to your —

Abe Fortas:

The question is, is there any case, forget about the national security, any other case?

Erwin N. Griswold:

We have taken the — we have taken the position that any conversation between the defendant and his counsel must be turned over without further question.

Abe Fortas:

Must be turned over to the defendant?

Erwin N. Griswold:

To the defendant.

Abe Fortas:

Even though it may, regardless of what’s in it?

Erwin N. Griswold:

Even though it was fixing a go off date.

Abe Fortas:

Now, is there anything else?

Byron R. White:

Could I interrupt there and (Inaudible)?

Erwin N. Griswold:

Yes, Mr. Justice.

We have taken the position that any conversation we’re living out national security now too between the defendant and his counsel must be disclosed.

Potter Stewart:

I thought you’d taken the position that anything determined by the trial judge in camera to fall into that category must be turned over.

Erwin N. Griswold:

Oh, yes.

Oh, yes!

That’s the objective of turning it over to the trial judge, if he says that it must be disclosed under these conditions or various circumstances, we undertake to be, of course to be mummed by that.

William J. Brennan, Jr.:

And I suppose you or the Government itself would concede in advance that deal with material would be relevant and save the judge with the task.

Erwin N. Griswold:

Yes, certainly Mr. Justice.

Any material which we regard as relevant has as a matter of fact over the past three years been turned over to the defense.

The only problem arises with respect the material which it has contended is not arguably relevant.

Earl Warren:

Mr. Solicitor General, on the question of standing alone, what is the minimum interest in the premises that the defendant might be able to show that would entitle him to standing?

Erwin N. Griswold:

I don’t know Mr. Justice.

I think the variations and the facts are unlimited and it will probably have to be worked out in the Jones case, the defendant had small interest in the premises.

He was a licensee at will I suppose to use the old lingo.

He was a guess in the premises but he was there at the time.

There are differences between his owning the premises if the premises being owned by someone else but he being a science specific space in them which is his as a right for the time being and others who are yet simply guess or a transient in the premises.

And I find it very difficult to lay down any dogmatic line as to just where the alliance should be drawn.

Potter Stewart:

Mr. Solicitor General, assume that A invites B and C to a meeting in his house and A has the consents — make — asks the Government to consents to the taping of that conversation by the Government.

Now, is the Government’s position that B and C — that there’s been any violations of the Fourth Amendment in that?

Erwin N. Griswold:

Mr. Justice, I think there maybe under the Katz case if B and C have —

Potter Stewart:

Even though A has —

Erwin N. Griswold:

Even though A has — even though A has consented as suggested.

Even thought the telephone company consented in the Katz case, I don’t think that would’ve made any difference.

I think that B and C have to have such relationship to the premises that they have reason to think that their conversation there is private and not being disclosed.

Potter Stewart:

Well, that’s not really a relationship to the parents, is it?

Potter Stewart:

How about let’s say that A has a hotel room and he’s absent and B and C are in that room they have no relationship with the premises at all but they do have an ordinary and they have an expectation that —

Erwin N. Griswold:

I would answer no on what basis B and C are in the premises.

Did A tell him they were free to use the room anytime they wanted to?

Did he invite them there?

Potter Stewart:

I don’t see the — what difference does it make?

Erwin N. Griswold:

I’m trying to interpret to Katz case in its limitation and I’m not sure just what difference it makes.

I know that if it’s a telephone booth, they have a right to expect their conversations will not be overheard.

I wouldn’t have supposed that the Katz case was limited to telephone booths.

We’re now turning to the Ivanov case.

Incidentally, there is an aspect with respect the standing that I can make here.

The fact is that Ivanov and Butenko were never overheard talking together.

There are overhearings of Ivanov and there are separate overhearings of Butenko, and I supposed that an argument could be made that Butenko has no standing to object with respect to the overhearings of Ivanov and vice versa.

However, in none of these cases did the overhearing have anything whatever to do with the evidence which was actually produced at the trial.

It is totally irrelevant to that and the problem which I am concerned here is the appropriate protection of the Executive Branch of the Government in carrying out the President’s responsibility to conduct the foreign relations of the United States and his responsibility as Commander-in-Chief of the Army and Navy.

I think an argument could be made that what was done here does not violate the Fourth Amendment, because the Fourth Amendment forbids unreasonable searches and seizures in those words.

And the question as to what is reasonable obviously varies with the circumstances.

But we are not making any contention and there is not involved in this case any question of the admission of evidence which was obtained by a reason of electronic surveillance and we are contending that there was no evidence admitted in this case which is the fruit of the poisonous tree which was derived from an electronic surveillance.

Mr. Williams has argued very eloquently that in a free country that the Executive ought to be free to do this but then it ought to be put to its choice either to disclose or to abandon the prosecution.

Now actually as it has been pointed out in the Kaplan case, the prosecution was abandoned and Mr. Williams said that was the only one in all the year since what in the brief for Butenko on page 27.

There are cited two other cases, United States against Egorov and United States against Sokolov where cases were dismissed “in the interest of national security” and there had been other cases which have not been brought because the evidence was in fact obtained through illegal surveillance and the officers of the Government felt that they could not appropriately proceed in those cases.

But here we have a United States citizen and a Russian citizen not entitled to diplomatic immunity and we have a situation where disclosure has been made that there was electronic surveillance and the suggestion is made that that electronic surveillance is entirely irrelevant to anything which has a period in the prosecution and it is our position and I think I should be frank to say that this is the case in which we are concerned not to Alderman and Alderisio, we can live with that of course.

William O. Douglas:

You mean by that Mr. Solicitor that if we would’ve come out contrary to your position as in camera inspections in the Alderman case; you would still urge that there are other reasons why we ought to require in camera inspection.

Erwin N. Griswold:

Well yes, Mr. Justice exactly, and the whole relation of the executive power here and the whole question of the balance which it seems to me is clear and important.

William O. Douglas:

Well, suppose we came out contrary to your position in Alderman, how would you suggest that the issue of national security be brought to the attention of a trial judge in a case like this and really by and for representation of the U.S. Attorney or an assistant U.S. Attorney?

Erwin N. Griswold:

Yes, Mr. Justice.

William O. Douglas:

That would be enough?

Erwin N. Griswold:

After it, I don’t know of any other way that would be that is the — that he is the person who appeared —

William O. Douglas:

Well, I think that you have procedures in the justice department where the representations, aren’t there in privilege cases made by someone very much higher up than the U.S. Attorney?

Erwin N. Griswold:

Well, the question would undoubtedly be considered by appropriate officers in the department but the person who normally appeared —

William O. Douglas:

You know, I can see, my premise is that you’re not ordinarily to be entitled in camera inspection but that you’re arguing that it should in any event be an exception for national security cases but I’m just concerned how practically the fact that it’s a national security case is brought to the attention of the trial judge?

William O. Douglas:

Do you think it’s enough just to have an assistant U.S. Attorney representative?

Erwin N. Griswold:

Well —

William O. Douglas:

But this is one on therefore, we want you to go ahead and make an in camera —

Erwin N. Griswold:

That leaves the impression that the Assistant United States Attorney is acting on his own as an independent man often in provinces, some place and maybe he will and maybe he won’t.

Actually, these matters are very closely watched by Senior Officers in the Department of Justice and the Assistant United States Attorney acts on instructions.

Abe Fortas:

But Mr. Solicitor General, in this case, in the Ivanov and Butenko case, you are proposing that the material be submitted to the judge with in camera inspection, are you not?

Erwin N. Griswold:

Yes, Mr. Justice.

Abe Fortas:

So that I — maybe I didn’t follow you and Justice Brennan but you don’t object to submitting it to the judge for in camera inspection issue as whether it should be turned over to the defendant or defendants or their counsel for their inspection without the first being sifted by the judge to determine relevance.

Erwin N. Griswold:

But that is, that is exactly our position here.

I may say I had a good deal of difficulty getting it established that we could take that position here.

The view which would be taken in a case of this sort in any other country I know of is that neither this Court nor anyone else would’ve ever heard anything about it.

We have not taken that position, we have made disclosure that there was electronic surveillance following the order in the Kolod case.

We have sought to get that order modified so that though there will be disclosure it will be disclosure to the district judge.

Now, here all the protective orders that Mr. Williams can divide will not help because if it is disclose to counsel and the parties, it is disclose to a man who had a direct contact with the place where it is not desirable in the national interest that there be disclosure.

Moreover —

Could I ask you a question at this point?

Are you asking us to decide here or believe often on remand the question as to whether these violates this bugging in this particular case violate a national security violates the Fourth Amendment?

Erwin N. Griswold:

Mr. Justice, we — our position would be the same whether it did or not. We are not arguing here that it did not violate the Fourth Amendment.

We are suggesting that there is round on which it could be argued and there may be some future day when another Ex parte Quirin comes along where it may develop that evidence was obtained against German saboteurs who landed on our shore by wiretapping and electronic surveillance and that that was the evidence which there was and which the Government chose to produce and I frankly would like not to foreclose the decision which might be made in such case in time of war.

In this case, we are not contending that any evidence so obtain was admissible.

We are only contending that when the position is that the electronics surveillance did not in anyway lead to the evidence which was used in the court that the decision of that question should be made by the district judge in camera without disclosure to the parties or the Congress.

In other way, this premise in which you’re proceeding here is that you admit for the person to this case that this was illegal bugging?

Erwin N. Griswold:

Yes, Mr. Justice.

Potter Stewart:

But wouldn’t you — certainly this case wouldn’t even be here if there was not a violation of a Fourth Amendment.

Erwin N. Griswold:

I still Mr. Justice would like to reserve at sometime the right to argue that there has not been a violation of the Fourth Amendment.

But we are conceding for the purpose of this case that this was taken in violation of the Fourth Amendment.

Potter Stewart:

And you — you better remain free to argue to the district judge that there was no violation?

Erwin N. Griswold:

No, Mr. Justice.

Here and in the District Court, we are conceding that this is in violation or this —

Potter Stewart:

You wanted to know for another case.

Erwin N. Griswold:

I want to reserve it for another case at another time under different circumstances involving the national security.

Now, one of the things that turns up in these cases involving national security is that people just wonder in to the surveillance.

Let us suppose that the government has duly authorized the attorney general to — duly authorize by the attorney general has entered into a surveillance directly connected with the national security.

No one can question under this case it is directly connected with the national security.

Supposed that the record reads like this; a person answers the telephone and says “Hello,” the other party says, “This is John Brown, I want talk with Joe.”

The response is, “Joe who?”

The calling party says, “Why, Joe Smith of course,” to which the response is, “There is no Joe Smith here, you must have the wrong number,” and he hangs up.

Two years later, an indictment is found against John Brown for failure to report for induction under the draft.

Now, the crime of failing to report for induction under the draft is done publicly.

It’s in a place where many people are present and the person simply does not respond to the call.

There is no way that electronic surveillance can lead to evidence of that essentially undisputed fact.

In due course however, the Government finds that a conversation of John Brown has been intercepted in connection with surveillance activities.

Well, the Government feels obligated to disclose this fact to the Court despite the fact that it’s perfectly obvious that the conversation has utterly no relevance with respect to our connection with the graft prosecution.

Yet, to disclose the conversation to the defendant, we disclose the place, time, method, and object of the surveillance, the disclosure I am advised but simply cannot be made in many cases of this type.

I would point out that in Mr. Williams’ brief in this case according from a transcript made in another case, the name of a foreign country is placed in print, not disposed I may say by the government representative in that case but by the Court.

We’ve accepted the fact that we can’t make this determination for ourselves.

Even in the clearance cases, although that’s undoubtedly what would be done virtually every other country in the world.

We do submit though that we’ve met our responsibilities and that the competing and factors involved are adequately balanced if we make the disclosure to the judge.

If he determines that the material is irrelevant, no further disclosure would be made and the material disclosed to him would be sealed to be made available to the appellate court for review.

On the other hand, if he determines that the material could be relevant.

Note, I didn’t say “is relevant,” but “could be relevant,” then the Government will have to decide in such a case whether to make the disclosure to the defendant in this counsel or as is more likely to be the situation for national securities involved to dismiss the prosecution.

Thirty years ago, I am told that when Mr. Simpson, oh my, it’s nearly 40 years ago became secretary of state, he terminated the activities in the state department by which there was surveillance of foreign activities saying that gentlemen do not open other people’s mail.

But in 1940, under different conditions and under President Roosevelt, that rule has been changed.

I would hope that we would not get into a situation where the United States has its arm tied behind his back in the way that no other nation has and I think that the interest of the Government can be adequately protected and the interest of the defendant by providing for disclosure to the trial court in cases of this sort.

Earl Warren:

General, I’m not quite clear on what constitutional distinction you make between national security cases and other cases of illegal espionage.

Erwin N. Griswold:

I would give you speaking in constitutional terms; I would rely on the power of the President to carry on foreign relations and the power and responsibility of the President as Commander-in Chief of the Army and Navy.

And there are numerous decisions of this Court which have recognized the importance of these powers and which have set that the — well, for example in Kennedy against Mendoza Martinez, while the Constitution protects against invasions of individual rights, it is not a suicide pact.

And similarly in the Chicago and the Southern Airlines case, the Court referred to the fact that the President, both as Commander-in-Chief and as the Nation’s Organ for Foreign Affairs, has available intelligence services who’s reports are not and ought not to be published to the world and it is because of these powers expressly granted by the Constitution which in my submission must be interpreted together with the Fourth Amendment which does not forbid all searches and seizures but forbids unreasonable searches and seizures that I would argue that in this case where we are not seeking to bring the material in the evidence but are seeking merely to show that it has no conceivable relationship to the prosecution that the determination by that fact by the independent district judge adequately protects the interest of the defendant.

Well, I assume that the core of the distinction withdraw between that in Alderman on the assumption that you’re in camera provision as it prevail in the Alderman case is that a protective order there and made his advice to protect the interest of third parties or as in the national security case protective orders and as —

Erwin N. Griswold:

By its very nature, the protective order cannot protect.

That’s the core of the distinction —

Erwin N. Griswold:

That would be a substantial part of the distinction.

Or any of those cases that you just cited to us premised on the illegality of the government’s action.

Should we — does it flow from that that any action that the President takes that bears upon his duties as Commander-in-Chief or in foreign affairs regardless of whether its legal or illegal must be sustained by the Court?

Erwin N. Griswold:

Certainly —

As unreasonable search —

Erwin N. Griswold:

Certainly not, Mr. Justice.

Where do you draw the line?

Erwin N. Griswold:

I think its very difficult to draw the line, that is a question of balance in this case when the materials are seen by the district judge, it will be perfectly apparent that it bears no relation whatever to the prosecution when the alternative is that it either must be disclose in effect directly to the foreign nation or that the prosecution must be dismissed.

It seems to me appropriate to draw the line at the place which says that there need to be further disclosure when there has been an independent determination by the district judge of the question of conceivable relevance particularly when that type of question of relevance is one which judges habitually make and which they do make in a number of other situations which though not the same of course are analogous to this such as those under the Jenks Act with respect to the disclosure of grand jury minutes discovery of evidence and things of that sort.

In what stage of the proceedings should this information be brought to the attention of the court and counsel?

Erwin N. Griswold:

Mr. Justice, that say again a difficult question, one might think and in many situations one could say that it should be before the trial.

On the other hand at that point, it is very difficult for the judge to have many ideas as to whether the material is relevant to what will be brought out at trial.

In most cases, it seems to me that it is best to have the disclosure made after the conclusion of the trial at which time the judge knows what the evidence was and has some basis for determining whether it had any source in the material.

That has two effects, one of which is that if the judge decides that the evidence was stated, then there must be a new trial but the other is that because of that, the government prosecutor is going to be extremely careful to see that he does not introduce evidence which can be regarded as tainted because he does not want to go through the process of having a trial and then having it set aside.

In most cases therefore it would be my view that as in this case, it is wiser, better judicial administration to have the disclosure made after the conclusion of the trial rather than beforehand.

Byron R. White:

Mr. Solicitor General, the maximum note that the government really has to suffer in any of these cases is dismissal of the prosecution.

Erwin N. Griswold:

I believe so Mr. Justice but that —

Byron R. White:

That’s the same — whether it’s national security case or not.

Erwin N. Griswold:

That in the aggregate can be a very serious matter — in the national security area.

Byron R. White:

The interest of the defendant is to say and the interest of the government of prosecuting is the same or and it’s just that the reason for not disclosing is the very —

Erwin N. Griswold:

The reason for not disclosing is a —

Byron R. White:

But nevertheless, in any of these cases, that the maximum harm that come to government’s dismissal in the prosecution.

Erwin N. Griswold:

I believe so Mr. Justice.

Byron R. White:

Okay, thank you.

Erwin N. Griswold:

I think that is a very considerable harm.

Byron R. White:

Yes.

Earl Warren:

113 of the October term 1967 that a Willie Israel Alderman et al, Petitioners versus the United States.

Mr. Solicitor General.

Erwin N. Griswold:

Mr. Chief Justice, this case is here on reargument having been previously presented to the Court last May on a motion made by the Government to modify and order of the Court which the Court entered in January of this year.

Erwin N. Griswold:

The case began as an indictment for conspiracy to transmit in interstate commerce communications contending threats and design to injured one Robert Sunshine of Denver, Colorado.

There were originally four defendants, one was acquitted and is not here.

The other three defendants appealed to the United States Court of Appeals for the Tenth Circuit.

One of them, a man name Kolod has since died and so the case now involves the two Messrs. Alderman and Alderisio.

At the trial of the case, defendant Kolod who is no longer here sought to introduce evidence about illegal surveillance at the Dessert Inn in Las Vegas, Nevada.

The materials were submitted to the trial court in camera and it was held that they were not relevant and that evidence with respect to them could not be introduced.

Thereafter, while the case was pending before the Tenth Circuit Court of Appeals, the Government disclosed that it had additional files relating to conversations overheard at the Dessert Inn.

The case was remanded to the District Court to examine this material in camera and that Court found nothing admissible in the additional material.

Thereafter, the Tenth Circuit affirmed the convictions; the petition for a writ of certiorari was filed here and was denied in October 1967.

Now I should make it plain that these earlier disclosures of surveillance material are not now involved since Kolod has died and they related only to him.

There’s nothing now before the Court relating to the electronic surveillance material which was considered by the courts’ below.

We now have a wholly new problem, I mentioned that background partly to avoid misunderstanding and partly because that issue whether consideration by the Court in camera was the issue which was presented by the petition for certiorari which this Court denied in October 1967.

Following the denial of the petition for certiorari, a counsel for Alderman and Alderisio filed a petition for rehearing in which they asserted that they had reason to believe that there was additional surveillance involving the defendant Alderisio.

In response to that, Mr. Sprecher then acting Solicitor General filed a paper with the court in which he said that pursuant to the government’s policy, it had been determined that there was nothing which was arguably relevant with respect to the prosecution.The court and —

Earl Warren:

Did that infer that there was additional surveillance?

Erwin N. Griswold:

The court so understood it and the fact that there was additional surveillance.

I’m trying to develop the chronology by which the case came along and Mr. Sprecher’s statement simply was that, “The department had determined that there was nothing which was arguably relevant.”

It was on the basis of that that the Court entered its order in January of this year remanding the case to the District Court for an adversary hearing and the Government by that time had conceded that there were additional results of electronic surveillance.

It was following that order of the Court that the present motion was filed which is a motion to modify the order of the Court.

In that motion, we accept without question of any sort of this Court’s decision that the petitioners here are entitled to the independent determination of a Court.

We urge however that this should be done in the first instance by the judge in camera with the judge then being created to order such further proceedings as he maybe necessary or appropriate as a result of his examination.

This is the procedure I would point out which was followed in this case with respect to the Kolod’s surveillance at Las Vegas.

This was directly approved by the court below and this Court denied certiorari.

Similarly, the Seventh Circuit in the Batalla case which is now pending before this Court on a petition for a writ of certiorari has sustained such a procedure.

Earl Warren:

Mr. Solicitor General, one last wonder, why it takes as long as it took the Department of Justice to find out what bugging of this kind went on in its own department?

Why do we have to go through three different proceedings in three different courts to have the Government admit that there was a certain amount of it in one proceeding and denied that there’s anything more and enter, admit that there’s more of it in the second proceeding and then still more in the third proceeding.

Erwin N. Griswold:

Well, Mr. Chief Justice, I’m distress myself, all I can say is that at anytime when it is become known to me that there has been such an action prompt disclosure has been made.

This is a problem which was brewing for a long time.

We — there are clear orders of the attorney general effective in 1965 that it should not be done except in national security matters which is a question involved in the next two cases that’s not involved here.

There’s no question of national security in the Alderman and Alderisio cases.

Erwin N. Griswold:

I have found nothing in my tenure in the Department of Justice to indicate that that order of 1965 has there been in anyway violated and I am hoping that we are slowly beginning to get to the place where this will receive into the background.

It first became apparent in this Court something over two years ago in the case of Black against the United States where the then Solicitor General filed a memorandum which disclosed electronic surveillance.

At that time, the attorney general established a committee in the Department of Justice to review every case where it was found and to make a determination as to whether there was anything which was arguably irrelevant and to make disclosure in cases where there was anything arguably relevant.

This is the procedure which the Court has found to be inadequate that the department cannot itself make that determination and this we accept without question.

The only issue is whether the disclosure must be made either in public or to the defendant and his counsel under protective orders or whether it is appropriate in these cases to make disclosure first into the district judge.

Now, I find myself with some feeling that we have made this matter more difficult than it need to be.

I don’t want to minimize the difficulties this has been a very worrisome problem for a long time.

But actually there a sizeable number situations where the procedure is established that determinations of relevance may be made by the district judge in camera.

One which goes back quite long ways is the materials which need to be disclosed in response to a subpoena duces tecum, a party may be a little concerned taking that certain items are not covered by the subpoena but not wanting to be in contempt of Court in having it found out later that he didn’t turned into something which turned out to be irrelevant and it has long been the practice that in such a case, the party may submit an item to the Court for the Court to determine whether it is within the scope of the subpoena.

In the areas of discovery under Rule 16 of the Federal Rules of Criminal Procedure, this Court has specifically authorized a procedure under which the material is shown to the district judge in-camera and the judge determines whether it is irrelevant or not.

There is a case in which the government will file a brief in opposition today, I hope that I would have the printed brief here now but the government printing officer has not delivered it.

I’ve just made a proof of it available to Mr. Williams and it’s only illustrated but it’s not a major matter but it was a case involving a bank robbery, the counsel for he defendant proceeding under the brainy decision of this Court which holds that exculpatory material held by the Government must be disclosed to the defense.

The Government turned over a substantial amount of material to the court stating in its belief much of it was not relevant to this matter.

The Court examined it and turned part of it over to the defense and refused to turn over the other parts saying that they were no way relevant and the identity of the persons whom the Government had interviewed should not be disclosed to the defense.

We are there filing our brief in opposition in support of the decision of the Second Circuit which says that that is an appropriate procedure.

Similarly, under the Jenks statute, it is specifically provided that the United States shall deliver it by the statute to deliver and shall deliver a statement for the inspection of the Court in camera and upon such delivery, the Court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness and deliver the balance to the defense.

William J. Brennan, Jr.:

Mr. Solicitor General, is there any significance in the distinction that here we’re dealing with something that the Government obtained illegally and then none of those other instances, is that true?

Erwin N. Griswold:

I think there’s probably some distinction.

I’m not trying to suggest that any of these are conclusive, I am trying to say that there are a number of situations where the determination is made by the judge in camera without an adversary proceeding and I think that there are arguments which lead to the conclusion that that should be the procedure here.

Byron R. White:

For example, there’s no issue comparable to the deterrence issue that we have involved in this situation —

Erwin N. Griswold:

No.

I don’t believe there is in any of them.

On the other hand, there is no issue in those particular cases with respect to the protection of third parties as there is in the fourth of these that I was going to present which is the matter of testimony before grand juries which in some ways has a good deal of parallel with this.

Earl Warren:

Is there anything comparable in — in the Fourth Amendment on the search and seizure where the Court said, “Well, before we turn these things back, we’ll take a look at them and see whether it’s their material or not and not provided same information.”

Erwin N. Griswold:

No, Mr. Chief Justice, unless we get to the problem of standing to which I’m going to turn in a moment, the Court may say that the person who is seeking to have this material suppressed has no standing, it is so.

Earl Warren:

Yes, I can understand that —

Erwin N. Griswold:

In which case it will not be turned back but the matter of access to grand jury testimony has a mild parallel with what’s involved here, then the rule was for a long, long time that there could be no access to grand jury testimony.

It was secret.

Proceedings of grand juries were secret.

The court has broken that down in the Dennis case and in other decisions but in the process, it recognized that it was not appropriate simply to turnover the minutes of the grand jury to the defendant.

Erwin N. Griswold:

The court has explicitly decided that the district judge should examine the minutes of the grand jury and should not turnover evidence which is not — should not turn over a testimony in the minutes which is not relevant to the particular issue with which the defense is concerned at the time and has specifically referred to the fact of the necessity of protecting not only other witnesses but also third parties whose names might have been mentioned in the grand jury proceedings but who perhaps were not indicted for one reason or another and that is done by the judge ex parte.

Now, it also seems to me that perhaps we have considered this problem in two broad a way and in that respect, I found some passages in Mr. Williams’ brief which seem to me to be quite relevant.

On page five of his brief, he says if the FBI had ransack petitioner’s Alderisio’s home and taken his private papers without warrant or other process could it decline to produce them in Court.

Well, that has seems to narrow the contention to his which would be specifically Alderisio’s own conversations and if we narrow this proceeding simply to those portions of transcripts which contained conversations to which Alderisio was a party on one side or another.

We have already excluded a considerable part of the material.

And then —

Abe Fortas:

You mean to say that you would agree that the transcript of such conversation should be turned over to the defendant?

Erwin N. Griswold:

I’m not saying that.

I am saying that if we — I’m trying to narrow the issue to that.

I would still like to have some ground to stand on to say that even in such cases it may be appropriate for the judge to say that it is irrelevant.

But if the contention is limited simply to Alderisio’s own conversations, the problem is a good deal easier.

Abe Fortas:

But I don’t — do you read Mr. Williams’ brief as indicating that he is arguing only for such conversations?

Erwin N. Griswold:

Well I don’t want to — I don’t want to — I don’t regard it as bound by that statement.

I just notice that as I was reading it.

There are other passages to which I refer which seem to me to be parallel with that.

Similarly on page 16 and 17 of his brief, he refers to the proceedings in the local court, I believe in the Black case and at the bottom of page 16 on top of page 17, he says, “Based upon further proving and further argument, the Court made some limited excisions with principally of material in the airtel memorandum which had which had a live informant source.”

Now, I would simply point out that in that case, some part of it has been held to be irrelevant then I don’t regard that as a great importance but on page 22 of his brief, the last paragraph at the bottom of the page, the errant gossip rationale is quickly disposed of if we consider that the petitioners themselves either heard or made the scandalous references to third parties other while they were present.

Now, that seems to narrow the contention to conversations of which the defendants here were parties on one side or the other and this gets me to the issue of standing which was raised in the orders setting the case down for rehearing.

That problem presents some difficulties and embarrassments for counsel who are representing the government and cases of this sort.

I think the difficulty and embarrassment of Mr. Alexander who was appearing in the District Court here are apparent on pages 14 and 15, the problem is that if you could only disclose this material, you could show how utterly irrelevant it is.

But if you disclosed it, you have defeated the whole objective of trying not to disclose it.

Now, I think it can be said that we have made rightly or wrongly a sort of a compromise in this case.

We have made what amounts to a partial disclosure.

I had a good deal of concern before we went that far but I thought we had to.

In the footnote at the bottom of page 2 of our brief, we have stated our understanding of the situation here which is one that there were no overhearings whatever of Mr. Alderman.

There is no information with respect to Mr. Alderman and that with respect to Mr. Alderisio we have in effect disclosed the places where the overhearing was.

They were overheard on premises which were not his but were business establishments owned by associates of his or firms that employed him and where he did not have desk space.

Similarly, in another case which is appending before the Court on a petition for certiorari, we have disclosed the approximate times of the overhearings in an effort to show that they could not have been relevant.

Now, with respect to Alderman, whose conversations were not heard and whose premises were not affected, it is our position that he has no standing to object into the evidence to the failure to disclose with respect to conversations of Alderisio.

Earl Warren:

But, what any statements made by Alderisio at that particular time admissible against Alderman on a conspiracy case?

Erwin N. Griswold:

Well, I think not Mr. Chief Justice.

Earl Warren:

Why not?

Erwin N. Griswold:

The only question in this case is whether there is anything here which led to other evidence whether any evidence which was used against Alderman was fruit of the poisonous tree and if our position is that even though it was illegal with respect to Alderisio, even though there must be disclosure with respect to Alderisio that Alderman has no standing to raise that question.

Earl Warren:

Even though that may have produce the evidence that —

Erwin N. Griswold:

Even though that may have produced the evidence which was admissible against Alderman.

Earl Warren:

Now, what authority would you have for that?

Erwin N. Griswold:

Well, Wong Sun would be I think the closest case that is in 371 U.S. I think to some extent, it’s inherent in the Jones case which refers to the person aggrieved Alderman is not aggrieved by violations of the Fourth Amendment if that’s what they were with respect to other persons.

Earl Warren:

Even though they are co-conspirators?

Erwin N. Griswold:

Even though they are co-conspirators, yes.

That is, that is in effect Wong Sun.

Earl Warren:

What would you say is the standing of Alderisio to get the conversations these third parties taken place?

Erwin N. Griswold:

If it would be our position that if there were conversations to third parties when Alderisio was not present that he would have no standing in this case.

Earl Warren:

What about the conversation where he was present?

Erwin N. Griswold:

That gets harder.

I think there that we might say that he has standing but we still have the issue of relevance which we contend should be determined by the district judge in camera.

Earl Warren:

But what’s the foundation or standing in that situation?

Erwin N. Griswold:

His presence I suppose.

Earl Warren:

His presence?

Erwin N. Griswold:

I don’t think there’s very much foundation.

I don’t know just where the fine is.

I don’t know just exactly what the basis of standing is.

It seems to shift and erode from time to time.

I find it difficult to say that if the conversation was overheard at a time when he was present that he has no standing.

If I’m wrong about that, I shall not be sorry.

William J. Brennan, Jr.:

Mr. Solicitor General, when the Court entered its order, it was on the premise that the conversations of Alderisio that we were concern with, were conversations conducted by a government agency at his place of business from the footnote that you referred us to in your brief.

If it were established at the hearing that in fact what you represented now that they were not — it was not at his place of business.

Erwin N. Griswold:

Well, that is my —

William J. Brennan, Jr.:

Well, that — well, if that were established as a fact, what’s left in this case?

Erwin N. Griswold:

That it was not his place of business?

I would think it was greatly reduced of the scope of his claim to have standing.

William J. Brennan, Jr.:

Well, that’s it.

What’s left of his claim with standing?

Erwin N. Griswold:

If he was — if there are conversations of his and to get back to the question raised by Mr. Justice Harlan, if there were conversations made while he was present, certainly if there were conversations of his, he would have standing, if there are conversation made while he was present, I find it —

William J. Brennan, Jr.:

Well, suppose that you — he bugged the conversations that were on the street involving himself, conversations to which he participated and now the conversations of where he was present, would we have any problem here?

Erwin N. Griswold:

Well, it isn’t clear to me in the case where he is present but did not participate where he —

William J. Brennan, Jr.:

By upon the street, do you think it would — suppose the whole bugging had occurred of a conversation that took place on the street corner?

Erwin N. Griswold:

Well, then it is only a violation of the Fourth Amendment if it comes within the casual in some way or another and I find a little difficulty in seeing that the catch rule applies to a conversation on the street corner and it’s clear to me that you have —

Potter Stewart:

Well, as I get it, if you could established at the hearing as a fact but you say in your footnote that the places where the conversations were overheard were not his place of business but business establishments owned by associates or his firms and Alderisio himself did not have office space in subject premises and this is pretty much the same situation as if in fact the overheard conversation have taken place in the street corner?

Erwin N. Griswold:

No, I don’t think so Mr. Justice.

I think when you’re in a room you are somewhat closer to the situation involved in Katz where you have some expectation that what you hear will not be —

Potter Stewart:

Be like in a telephone booth?

Erwin N. Griswold:

To be closer to a telephone booth.

The one point to which I have not referred is simply why are we concerned and that of course relates to conversations of third persons and in particular, conversations which were heard when Alderisio was not present where we think they are entitled to some protection.

Earl Warren:

Mr. Williams.

Edward Benett Williams:

Mr. Chief Justice, may it please the Court.

From the briefs that had been filed in this case, and from the oral argument of last term, we can begin a consideration of the issues raised by the Court from the premise that the petitioner Alderisio’s constitutional rights under the Fourth Amendment have been violated by federal agents when they employed electronic surveillance equipment to overhear his private conversations.

Potter Stewart:

Did he make this argument Mr. Williams whether or not the place where they were overheard were his premises?

Edward Benett Williams:

Oh yes, sir.

Yes, sir.

If they overheard —

Potter Stewart:

Do you think that has any bearing on how — the scope of —

Edward Benett Williams:

No sir.

I do not, sir.

And I propose to develop that fully.

I think, so long as he had a proprietary interest in the premises which were electronically monitored that he has clear standing to — suppressed.

Potter Stewart:

Well, I’m assuming that the government was able to establish they had no proprietary interest in the premises.

Edward Benett Williams:

Well, whether he had a proprietary interest or not, I believe sir, it’s immaterial with respect to his own conversations.

I believe that it is material with respect to conversations of others when he was not present.

Potter Stewart:

But the question is standing that has become very important.

Edward Benett Williams:

Oh yes, sir.

Potter Stewart:

As to the scope of what he is entitled to, depending on whether he had interest or not in the premises, is that it?

Edward Benett Williams:

Yes, sir.

And I must say to footnote Your Honors observation that I was surprised and I use the word surprised consciously as understatement to hear the Solicitor General say that Alderisio had no standing with respect to monitoring premises in which he had a proprietary interest when he himself was not present because in the very brief filed by the Government at page 21, the Government says, “In our memorandum filed last term, we assumed that a criminal defendant would have standing to challenge unconstitutional electronic surveillance if one, he was a participant in conversations overheard in this manner or two, although not a participant, the overhearing occurred in premises owned by him or in which he had some other interest at the time, we add here to this position.”

Now if the Court please, what is the Government saying here?

It says, we have the logs, memoranda and records resulting from this illicit electronic surveillance.

And we’re not going to give them back to the victim of this electronic surveillance, rather, we are proposing a procedure by which we make a confession to the trial judge of the nature, the time, the place, and the fruits of our transgression and let the District Court judge evaluate that confession and determine in camera ex parte what is arguably relevant to the pending prosecution and what is the reason for which they advance this procedure?

They say in the case at bar because these logs, memoranda, and records may contain errant gossip without claim of the truth and injurious to third persons.

So, we say then to the Government as the logical next question.

Well, what about those logs, records and memoranda that are obviously and patently and palpably not injurious to third persons.

And what does the Government say to that?

With what I suggest to the Court is a rather cavalier and bizarre disregard for consistency.

They say, “The practical problem is that neither the Government nor the Court can ever now with certainty when disclosure to the defendant of an overheard conversation might be harmful to other participants in the conversation.”

I say mutatis mutandis that how can the judge know whether failure to disclose the logs, memoranda, and records of the overheard conversation might be harmful to the defendant in the vindication of his constitutional rights.

They go on to say at page 15, there are situations where even the disclosure of a conversation that is innocuous on its face can prejudice third defendants.

I say mutatis mutandis there are situations where conversations which are perfectly innocuous on their face may be lethal in suggesting leads to evidence gathered by law enforcement agencies for presentation to the grand jury and for subsequent presentation to the trial court.

They say at page 15, the experience of the Department of Justice in reviewing cases involving electronic surveillance to determine when disclosure must be made has indicated that because the factual situations are so varied, it is almost impossible to draw general rule of disclosure that can be applied to a broad class of cases and will avoid the possibility of injury to third persons.

To that we say amen and we say that it’s impossible to draw a rule of demarcation that will avoid through an in camera ex parte proceeding that will avoid injury to the defendant in the vindication of his constitutional rights under the Fourth Amendment.

The only safe course says the Government at page 15, “We submit is to decline the order disclosure whatever it is clear that nothing in the materials submitted is arguably relevant to the prosecution.”

We say if the Court please that the only safe course when we are talking about the vindication of constitutional rights and when concededly the trial judge cannot make this determination in camera ex parte without the aid of the defendant and his counsel is to make these conversations which had been illegally seized available to the defendant and his counsel.

We say if the Court please that the Constitution, the law and the basic rules of fair play require the disclosure of these materials to the victim of the search.

If the Court please as was pointed out earlier this morning, it couldn’t reasonably be argued by the Government if there had been a search of the defendant’s premises, a ransacking of his premises and a seizure of his papers and records, and letters.

It couldn’t reasonably be argued by the Government that those materials which were seized from him shouldn’t be returned to him but rather should be handed up to a District Court judge to determine whether any of them had arguable relevancy to the pending prosecution.

We say, if the court please, that the same basic principle applies with respect to conversations which are protected within the Fourth Amendment.

Abe Fortas:

Not quite that easy is it Mr. Williams because what you’re talking about in the cases before us at least one aspect of them relates to conversations between two strangers, let us say, who happen to be on the premises of the defendant and those two strangers may have had a reasonable expectation that their conversation would be private.

It may have a kind of an interest in this so that it’s much more complex and subtle it would seem to me then the case where the Government unlawfully seizes letters or documents belonging to the defendant.

I wonder really if the issue between you and me and the Solicitor General doesn’t relate to technique what is the proper technique casting and balance between what would seem to be obviously competing values.

Edward Benett Williams:

That’s right.

Let me —

Abe Fortas:

— or determining whether the material is or is not relevant to the prosecution for the defense.

Edward Benett Williams:

Well, may I address myself to the question which I understand Your Honor has raised.

Edward Benett Williams:

To concretize it, the case where the defendant whose premises are electronically monitored, and the monitoring picks up conversations of A and B when the defendant is not present and the question as I understand posed by Your Honor is, what’s the defendant’s standing to get those conversations and I suggest that there are competing social interests and there are competing legal interests.

What are they?

On the one hand, we have a defendant who has been charged with a criminal offense who is seeking to vindicate a constitutional right.

We have here a situation where the Government has violated his Fourth Amendment rights concededly by electronically invading premises in which he has a proprietary interest.

As a result of that electronic invasion, they have ripped certain benefits, they have ripped certain fruits, they have gathered certain evidence which they proposed to offer against him because they are saying you have no standing, and it was not your conversation sir.

On the other hand, you’ll have the competing social value of the two persons who thought they were talking privately maybe even against the defendant himself.

Now, what is their right?

We are weighing a common law right to privacy of these people against a constitutional right of the defendant.

What can be involved in that common law right to privacy?

It may be a pecuniary interest, well if it’s a pecuniary interest, I’m sure the Court will agree that it should be subordinated to the defendant’s constitutional right and the right to privacy can be safe guarded effectively I suggest to the Court insofar as protective orders can be fashioned and tailored by the trial judge to protect those third persons from unnecessary disclosure.

And it’s been our experience, if the Court please, that in everyone of the hearings which have been conducted as a result of an illicit electronic surveillance, the defendant himself has asked for protective orders because he does not want to proliferate the damage resulting from the Government’s invasion of his privacy and so to can protective orders be fashioned to protect insofar as possible the right to privacy from further damage as far as third persons are concerned.

Abe Fortas:

Guess what, in our sense that’s what we’re talking about here as one of those protective orders of the, in order to achieve one of those protective orders is if necessary to give the court the power to examine the logs in camera and to suppressed them for example that A and B and the situations that you’re talking about that you put not to the defendant if they — and they were talking about bumping of the defendant, I think that’s —

Edward Benett Williams:

That’s —

Abe Fortas:

— kind of a situation that people think about in connection with cases of these types and shouldn’t there be some mechanism by which the Court can examine that log in camera in there suppress it.

Edward Benett Williams:

Let’s make —

Abe Fortas:

And maybe that’s rare, I don’t know enough of that —

Edward Benett Williams:

Well, but Your Honor, I think you have pinpointed the situation that may constitute one-tenth of 100% of the cases and I think that even in that situation that the rights of the participants in the conversation can be effectively safeguarded.

If in fact, we have a realization of the bizarre hypothesis that two people on the premises are talking about eliminating the proprietor.

Then and in that case, the Government I suggest to the Court has the choice of providing those persons with the same kind of protection that it provides to material witnesses in many cases where these interests are at stake or alternatively, if it does not wish to do that and wants to exalt their rights over and above the interest of the sovereignty to go forth with the prosecution.

They can dismiss the prosecution but I do suggest Your Honor, that it is not practical, it is not feasible, it is not possible for a trial judge sitting in camera to make a determination as to whether any of the logs, memoranda, or materials resulting from the electronic surveillance where used by the Government in developing leads.

I want to give the Court just one illustration of that and it’s cited in our brief.

We have a case where there is a boilerplate indictment for income tax evasion charging the defendant in the typical language with evading taxes for a given year.

The only thing they ever change in those indictments of the year and the amounts of money.

Now, unlike Jenks Act materials if the Court please, unlike grand jury testimony, if the Court please, when we talk about a trial judge looking at the large memoranda and records of an electronic surveillance, we’re talking about packing cases filled with materials, not sheets of paper and we’re asking a trial judge to build a superhuman task of judge deposing packing cases of electronically monitored conversations against the skill of (Inaudible) of a criminal indictment using the wildest lights of his imaginative powers as suggested by the Solicitor General to determine whether the Government seize on any of those conversations and developed a lead.

Here’s the case where the trial judge spent four weeks reading the documents.

They were so voluminous that he had to delegate the reading to another judge who helped him and together they took four weeks reading them and they came up with the answer which you would expect that there was nothing that they could find relevant.

But when the trial of the case came on, this conversation which I submit no one could’ve determined was arguably relevant to the indictment turned out to be the origin of a lethal chain of proof.

What is the conversation?

“How are you?”

It’s one end of a phone conversation.

Edward Benett Williams:

“You’re coming on TWA?”

“Yes.”

“I’ll put you into the sands.

I’ll get a hold of Cliff, I’ll call right now.

Charlie won’t be there, his wife is being operated on.

I’ll have a room there for you and your wife.

You’re going to stay through sandy.

Okay buddy.”

Now, I suggest to the Court that no trial judge sitting before trial or after he had heard all of the proof in a three-week trial could have determined in camera ex parte that that was as it turned out to be the origin of a line of proof that was devastating.

Now, what is more if the Court please?

When this Court and other courts fashion rules designed to deter lawless law enforcement, we find that more sophisticated methods or device to countervail the rules of disclosure.

For example, when the Jenks decision came down and when the Jenks statute was subsequently enacted by the Congress, we found well motivated law enforcement officers zealous in the pursuit of their duties who found ways to put on paper in narrative form statements that were not susceptible to turnover under Jenks.

When the Dennis case came down, and grand jury testimony was ordered to be turned over to the defense after the direct testimony, we found and our finding across the country well-meaning and zealous, able, competent prosecutors who seek to avoid this procedure with advantage to the defendant by having grand jury minutes no longer transcribed.

Now, in this instance, when we have a Kolod rule, what has happen?

What can happen?

It isn’t any longer necessary, if the Court please, to make logs, memoranda, or records of electronically monitored conversations.

We cite in our brief a situation where the age in charge of the investigation monitored the premises of the suspect 24 hours a day.

He listens to the conversations each day and if he saw anything in those conversations which he believed to be of interest to him, he would telephone to another field office.

The information gleamed and he would ask field operatives to rundown those leads and the basis of the lead would be ascribed to a confidential informant protected from disclosure by McCray against Illinois and a lead would be developed.

A file would be created and there would be nothing, nothing of a written nature to turnover to the trial judge for an in camera ex parte examination to determine whether or not there had been a fruitful violation of the defendant’s constitutional rights.

So, I suggest to Court that it is not possible for a defendant to vindicate his constitutional rights in the area of electronic surveillance without an adversary hearing of full open adversary hearing and without a disclosure to him of the nature of the surveillance, the time of the surveillance, the place of the surveillance and the fruits of the surveillance.

Potter Stewart:

Mr. Williams, I’m still troubled a little bit or more than a little bit by what seemed to concern Justice Fortas in his question to you given the case of a conversation between A and B on the premises of C and C is the defendant in the subsequent criminal prosecution.

You suggested in your answer that C is right was a Fourth Amendment right, a constitutional right, whereas the right of A and B was something less that if it was I think you characterize it as a common law right of privacy.

I don’t understand that.

Edward Benett Williams:

Well, I think I could explain myself on that —

Potter Stewart:

Let me explain what’s on my mind.

Edward Benett Williams:

I understand you take questions.

Potter Stewart:

Take the Katz case for example now, that telephone booth I assume was the property of the telephone company and so we had this Fourth Amendment right I supposed as if going on the premises, under your theory was violated.

Mr. Katz, however, this Court held right there only also had a, not a common law right but a Fourth Amendment right on those premises.

Edward Benett Williams:

I like to answer both the questions suppose.

Edward Benett Williams:

I don’t think the telephone company had any right because at least that phone booth for the purpose to phone the Katz.

He was the one whose proprietary interest was invaded.

But on the first question that you ask, Your Honor says that I say that C’s constitutional rights were invaded but with respect to A and B, there’s only a common law right to privacy.

I do say that.

Potter Stewart:

I thought you say that?

Edward Benett Williams:

A and B’s constitutional rights have already been invaded by the Government just as C’s but when we come to the question posed by the Government as to whether A and B’s conversations which have already been victimize by an unconstitutional search should be made available to C, the defendant, then and in that case as between A, B, C.

We’re not talking about constitutional rights, we are then talking about a right to privacy which they have against him with respect to conversations which have already been seized unconstitutionally and I say that their right to privacy as again C must be subordinated to his constitutional right to vindicate his Fourth Amendment rights.

I don’t — I’m not good at — here to denigrate the fact that A and B’s constitutional rights had been invaded but that’s accomplished fact.

Fortunately for them, they’re not defendants.

C is —

Potter Stewart:

It’s an accomplished fact with respect to C.

Edward Benett Williams:

That’s right.

The only — the difference is that this is the post indictment staged in C.

Potter Stewart:

We’re talking about sanctions and protections.

Edward Benett Williams:

That’s right.

Potter Stewart:

To try to repair the violation of the — the two violations of the Fourth Amendment.

Edward Benett Williams:

That’s right.

The difference in the cases Your Honor is that C is a defendant in a criminal proceeding who has a right not to be convicted by illegally obtained evidence.

In the case that you hypothesized A and C are not the defendants and in this frame of reference, I say that in the hierarchy values that the Court should place A and B’s right subordinate to C’s.

If A and B were indicted and they were seeking the vindication of their constitutional rights and another frame of reference, I would have a different answer for you.

But I stand by what I said earlier Mr. Justice Stewart that having taken as the fact, the young constitutional invasion of the rights of all three that as between A, B, and C, we are really talking about a common law right to privacy, A, B, against C and that can be safeguarded insofar as it’s practical for the vindication of C’s right by a protective order that inhibits both C and his counsel from making unnecessary disclosure of the contents of that conversation.

Potter Stewart:

I understand your position.

And just in a word what is the violation of A and B’s constitutional rights if their on C’s premises.

Edward Benett Williams:

In a word Your Honor, the Government illegally and unconstitutionally listened to conversations which they believe where being privately held —

Potter Stewart:

And as I said in Silverman, Katz sort of a —

Edward Benett Williams:

Katz, Silverman, Wong Sun —

Potter Stewart:

Is that subject to this — in your view, is that subject to adhesions by C’s consent?

Edward Benett Williams:

By C’s consent, no sir, not by C’s consent.

It was a subject to —

Potter Stewart:

If C suggest the government, if you A and B are going to have a conversation in my premises, apprehended lease even though A and B anticipates that —

Edward Benett Williams:

If I understand your question, are you asking whether C could give consent to the government to electronically monitor A and B’s conversation if it was reasonably foreseeable to them that their privacy was not being invaded, I would say not sir.

Because I think that consent, if it is to be an effective way or it must be limited to one of the participants in the conversation where the parties to the conversation can unreasonably foresee that they’re going to be overheard in the normal course of things.

Now, with respect to the problem of standing that has been raised here, it is our contention and I have, I think articulated that in response to Mr. Justice Fortas’ question that Alderisio has standing with respect to conversations heard on his premises not withstanding the fact hat he was not present, I read page 21 of the Solicitor’s brief as a concession of that position and I think a concession is necessary for the simple reason that if we are to make the fruits of an unconstitutional invasion for one’s premises inadmissible, it follows clearly that we must make the conversation seized on Alderisio’s premises inadmissible against him.

William J. Brennan, Jr.:

But the fact is, if it was not Alderisio’s premises nor any premises in which he had an interest then I gather you would limit his right to the tapes of the conversations to which he was a party or conversations where he was present?

Edward Benett Williams:

To answer your question, as sharply as it was posed Your Honor, yes, I would take that position and I underscore, that section of your question which said in which he had no interest in.

William J. Brennan, Jr.:

Well I’m just — for myself at least, the Government seem to do something here that I didn’t know was an issue in the case, namely that these were not Alderisio’s premises.

Certainly, the original order was written on the premise that all of this bugging took place at business premises of Alderisio in Chicago.

That’s the way the purview was written.

Edward Benett Williams:

Well, as we develop the question of standing through the warning here Your Honor, it is ultimately our position that a person aggrieved within the purview of an electronic surveillance in Rule 41 is one against whom the search is directed whether he is identified or unidentified at the time of the search.

William J. Brennan, Jr.:

Well, I know, but still, I want to be clear about this Mr. Williams.

If the fact is that these conversations of Alderisio’s that were illegally bugged for conversations on premises not his own, then you would limit your demand I gather, not his own or in which he had no interest to conversations in which of his own or conversations in his presence, is that right?

Edward Benett Williams:

That’s right Your Honor, subject to one qualification which I’m going to develop and I give, I think that a co-defendant stands in the shoes of his co-defendant with respect to his right.

A co-conspirator stands in the shoes of his co-conspirator with respect to this right.

So, in the case for example of Alderman against whom the Government says it conducted no surveillance and whose premises it says it did not invade, we nonetheless say if the Court please that since this was an indictment sounding in conspiracy and since the Government took the procedure advantages that flow from a conspiracy case namely the imputation of the acts and declarations of Alderisio to Alderman and Alderman to Alderisio and the unindicted conspirators to each.

Since it takes the partnership theory and lays all the duties of a partnership on each of the co-conspirators, we say that when you take that theory to the limits of its logic, you have to give them the rights of partners also.

Abe Fortas:

Well that would tremendously expand our position that this Court’s taken in all Fourth Amendment cases, wouldn’t in this case?

Edward Benett Williams:

I would accept what Your Honor just said with the elimination of the advert.

I think —

Abe Fortas:

I’m sorry, I shouldn’t use advert but it would mean that we’re announcing you Fourth Amendment doctrine right across the —

Edward Benett Williams:

I think and I say that if the time has come that concept of standing must be expanded Your Honor if we are going to fashion a rule that will deter electronic surveillance because I suggest that the rule for which the Government contends is now our case.

Abe Fortas:

I think I misunderstood you a moment ago.

Did you really say that any person against whom electronic search is directed has standing?

Do you take the position as broad as that?

That is to say that if there’s an unlawful electronic surveillance directed against A, then he has standing even though he maybe a total stranger to the conversations and to the premises and no co-defendant or co-conspirator is involved.

Edward Benett Williams:

If he has — if neither his conversation is heard.

If his premises are not invaded, if he is not the subject matter of the conversation and if he is not a co-defendant with one whose conversation or premises were invaded, then I say he does not have standing.

Abe Fortas:

Well, you’re starting one more ingredient there Mr. Williams which says that if he is the subject of the conversation even though it’s between total strangers then he is entitled to disclosure.

Edward Benett Williams:

Yes, sir.

Abe Fortas:

So that is another ingredient.

Edward Benett Williams:

That’s another ingredient and I think that is the ingredient on which we part company with the Government in this proceeding as I understand their briefs.

Edward Benett Williams:

I see that my time is up with respect to — with respect to this case and the next case said is Ivanov and I hope to develop the question of standing fully in that companion case to this.

So I will defer with the Court’s indulgence my discussion of standing until that case is called.

Earl Warren:

Very well.

Number 197, John William Butenko, Petitioner versus the United States.

Mr. Danzig.

Charles Danzig:

Mr. Chief Justice and may it please the Court.

The defendant Butenko is a co-defendant in the prior case of Ivanov argument which the Court has just heard.

I want to mention at the outset that there are three other conspirators who were charged in the conspiracy but were unindicted by reason of diplomatic immunity.

And their presence in the conspiracy may have some relationship to the problem of standing when it gets up into the argument.

Now, when the Court projected the issues in this case, the issues were projected on the assumption that there had been in the chronic surveillance in violation of the Fourth Amendment were passed that point now because the Government has frankly admitted that it has overheard conversations of Ivanov and Butenko.

It has said nothing to date about any conversations that overheard of the other three conspirators who were not indicted.

And of course when it heard there may constitute a lead to the two defendants who were tried and convicted.

The main position of the Government is rather interesting.

It takes the position that whatever logs, whatever information it has on unlawful surveillances with respect to these two defendants should be turned over to a Court for examination in-camera.

It says also quite clearly in its brief that if that were dug, it is competence that the Court would not find that there is any information in those papers and records that are turned over to the Court in camera that could in anyway have led to the conviction to evidence that was used in the conviction.

I accept that statement of the Government as an absolute verdict and accepting it as a verdict, let us see just where we go in this case on the basis of the Government’s position.

The Government comes in with these records, gives them to the court in camera.

The court now can only do one thing and we are really in a post-conviction situation and not a pretrial situation so far as Ivanov and Butenko are considered.

There is a massive record of about 3500 pages.

There’s a good deal of documentary evidence and I suppose the Court being its diligent federal judge will sit down and make a mechanical comparison of what the record it has received in camera contains and what the transcript shows.

Assume that mechanical comparison is made and assume as I have assumed, the absolute truth of the Government’s statement in its brief that an examination of these records in camera will convince any judge that they are no way arguably relevant to the conviction.

I say, that if we buy that position or sanction of any matter whatsoever, that’s the end of this case.

That’s the end of Mr. Alderisio and Mr. Alderman and Kolod and a lot of other people who similarly circumstance but before we end and this is rather interesting because if that happens, we have no problem with national security nor do we have any problem with the rights of third persons to what extent they maybe injured in person or in reputation, they just fall by the wayside on the basis of these assumptions.

The Court will never reach those questions and this is exactly the position the Government has taken on the point of national security that about the page 8 or 9 in their brief here in Butenko, they say, “Please, do not put this to the option of making the choice whether to dismiss the prosecution or whether to make a revelation of what we have gathered.

Please let us bring this in, in camera and we can satisfy any judge that there is nothing in these records which in anyway touch the prosecution so that we have no problem with national security, we have no problem with injury of third persons.”

Now let’s see whether or not this position has any merit.

I submit it has not.

It’s violative of so many things.

It had been said time and time again by this Court with respect to ex parte or in camera proceedings.

Take the Jenks case, the Dennis case which requires a turnover of material.

Charles Danzig:

It has been said that that turnover is not based on any constitutional requirements.

It’s said that its based on the supervisory power of this Court has over the administration of justice in the federal court.

On that basis and that basis alone it would seem to me an in camera proceeding would be unjustified.

The Fifth Amendment which guarantees to every party and this United States due process of law, wouldn’t that be violated by the Government going in with the massive material unattended by the defense either through counsel or through the defendant himself.

And then when we look at the protection of the Sixth Amendment which calls for the assistance of counsel, a public trial, the right to confront the witness against you, none of those requirements which are embedded in our Constitution unmistakably or observed by this procedure that the Government wants this Court to improve.

Now, when we take a look at the kind of records we have that they want to submit to a Court, that too should give I suppose.

Now, I haven’t seen nor has anybody seen the kind of records they have in this case.

This state will not show us until this Court determines how if and all or they are to be shown.

But we do have some information on that, a considerable information is incorporated in Mr. Williams’ brief, in Alderman, and some of it appears in his brief in Ivanov.

Now, what do we find there?

We find a rather shocking situation.

We find a serious question whether all the records have been produced in the first instance and every time they produced records, they come along and some of later time, “Oh, we didn’t know about these facts that turned up in some draw or corner.”

When the records are produced, we find that there’s information in there that’s commingled with other information, so as to conceal the source.

Euphemisms or symbols are used to conceal whether or not the source of the information came from a live investigation or from an electronic bug or even a wiretap.

There are cases where there are no records at all.

As in the case Mr. Williams adverted to where the agent heard the telephone, played back the tapes, got — heard the conversation, played back the tapes, called agents all over the country and started a chain of investigations on people and he has nothing.

Now, when we see the nature of the records, and we can only go by what we have seen in the past and what’s now known and has appeared time and time before this Court.

When we see what kind of records they want to submit to a Court in camera, we say that we though not having our constitutional rights protected.

We are advocating a course of conduct that’s violative of those rights and the only way we can find out whether there’s any integrity to the record or whether or not there’s some illegality that’s been concealed is by having a full pledge adversary hearing at which extrinsic evidence must be produced so that the defendant can be confronted with a live witness and not a record, the genuineness, the authenticity, integrity of which can be questioned and if we start with that, no court of justice and the pursuit of justice can tolerate a course such as now being seriously advanced by a government that is governed by constitutional limitations as this Government.

Abe Fortas:

What does that mean in practice Mr. Danzig?

Does that mean that you would be entitled to subpoena the agents who overheard the conversation?

You’d be entitled to subpoena then, won’t you make sure that you’re —

Charles Danzig:

Your Honor, yes.

Abe Fortas:

— records were complete then you’ve been able to — would you be entitled what you’ve been entitled to subpoena, the agents who investigated the case generally to see whether they utilized then of that information?

Charles Danzig:

I should think so Your Honor.

Abe Fortas:

Then would you be entitled to subpoena, the lawyers whoever it was who put the case together for presentation of a grand jury to see whether they utilize any of the information.

Charles Danzig:

Your Honor, that has been done in one case and I would say yes or and at least to see how much of the evidence that has been on our assumption that are legally obtained has been used either before the grand jury or the trial because if we’re going to extra paint this evil, then that evil it is and the extent of the evil has been mentioned quite empathically and fairly by decisions of this Court in Katz and in Berger and others that — other decisions that don’t come to mind, that Government must bear the burden of purging itself and that event should have the right to call these agents as though they’re hostile or court witnesses and cross-examiners as happened in way where we had a Jenks statute statement.

Abe Fortas:

You make no distinction between national security cases and other cases?

Charles Danzig:

Your Honor, it seems to me that the national security problem has been resolved and by the decision of this Court in Jenks and in Roviaro where this bogeyman has been raised and nobody knows whether it really is national security or isn’t a free delivery on a deposition here.

I don’t whether or not their facts would get this particular case into the product of that definition.

Charles Danzig:

Now, they have a choice —

Abe Fortas:

Well, espionage is kind of — espionage on behalf of foreign power which is alleged to view the case here is kind of close to national security.

Charles Danzig:

Oh, it’s a very seductive situation that’s very easy to accept that as national security but the content of the crime that is what actually did happen here or what could they have gotten through this.

I don’t want to call him a menial because he had a very high sounding title like an administrative director or something like that.

I’m talking about the defendant Butenko.

But the papers he had access to and I don’t know anything about the trial, I’ve only read part of the record indicates that he didn’t have access to anything of any great importance but that’s not too important here.

The fact of the matter is that they have I think merely invoked the specter of national security to gain their main objective and that is to have an in camera hearing.

Now, let’s see just what some of the things —

Abe Fortas:

The reason I was asking these questions is what’s going on in my mind is this if you take the sweep of Mr. Williams was talking about and what you’re talking about as I understand that, the national security cases doesn’t really — does not mean that wherever there has been any electronic espionage over a vast area that may have some relationship to the defendant that in that vast area, the Government is faced with the choice of — well, the Government really has to dismiss the case if there has been any electronic espionage in the or electronic surveillance in this vast area that we were discussing with Mr. Williams.

Charles Danzig:

I should think that would be a fair position to put the Government into sense itself has created a predicament it finds itself in.

There are rather means available to it, there are procedures of course under the crime control and that becomes a very simple matter you applied for a warrant with a court order.

But prior to that, there have been occasions when some governmental authority wanted to have some information and they authorized a surveillance and electronic surveillance of one kind or another.

It could’ve been done within constitutional confines but this Government has acted lawlessly and set a very poor example for the rest of the people in this United States.

Now, let’s go to the actual trial procedure that was used here for us to determine whether or not an in camera proceeding could in anyway produce a fair result.

Now, the case was tried in a very interesting way by the United States Attorney.

He put on agent after agent and did not have them testify as to all the observations they made over a period of six months while these people where under surveillance.

He put them on for let’s say April 21st and after he testified for the surveillance, he took him off and put another agent on the pickup the termination of the first agent surveillance and went on with his and so on so that he had all the observations of the total day surveillance in that on that particular day, then he start it with the same agents and maybe other agents to go on and develop their surveillances on the other half dozen days over this period of six months of this particular thing took place.

Now — and that was a good way of doing it because the jury did not get confused, it could keep track of each day surveillance and see just what these people did.

Now, on a Sunday, May 26, an agent by the name of Broderick and Your Honors will find this at page 595 of the trial record.

He was surveiling the defendant Butenko at his apartment in Orange, starting at 9:30 in the morning.

Mr. Butenko went to the store, bought a sandy paper, went back stayed there all day, and then got into his car about 5:20 p.m., went down Park Avenue and Orange until he hit the Garden State Parkway and the agent testified that he discontinued surveillance.

He also testified he reinstituted surveillance about an hour later and picked up Mr. Butenko’s car all by 20 miles north from the point where he terminated his surveillance in front of a restaurant in North Jersey.

Now, we’re talking about North Jersey, a heavily traffic area, many cars out on a Sunday and the jury would get the impression that Mr. Butenko had eluded his tail, the man who was watching him.

Oddly enough, Mr. Broderick, the agent had no trouble picking up Mr. Butenko some 20 to 30 miles away, some two hours later.

Mr. Butenko comes into sight of three agents who are now in a construction — in a trailer that’s used on a construction site near a parking lot.

And that agent that with a pair of binoculars and his two assistants with him says, testifies that he saw the Russians in their car come in at 6:15 and Mr. Butenko in his little Falcon come in a few minutes later and they all went around and then nobody got out of the car for they all followed one another out so that the two cars met.

Now, I think the FBI is pretty good but I don’t think they’re that good that they could follow an automobile through North Jersey, have a surveillance interrupted, and then pick it up some 20 to 30 miles later.

The clue to the thing is that these three agents who were in this trailer were there from 3 o’clock on that Sunday afternoon, the same day May 26 and they were expecting Mr. Butenko and they’re expecting the Russians there.

And I ask, how could they have known of this rendezvous because that’s what it was but through a bug on somebody and to try this case on the theory that all these evidence was obtained through physical surveillance and not through a bug leaves an impression on a jury’s mind which is not quite consistent with a fact and it makes me question whether or not evidence of that nature is reliable and whether all these physical surveillances were not a way of concealing the real source of the information namely the bug and I want to repeat a question that Mr. Justice Brennan quote in his concurring opinion in Palermo whether or not the interpretation placed on that statute, the Jenks Act would not encourage agents to prepare their reports in such fashion that they would be insulated from production.

And I question here whether or not these physical surveillances and this omission of information about the real source of the clues and the rendezvous and whatever else was used in the conviction of these defendants, I question whether or not these records may not in view of the absolute faith the Government has in submitting the records in camera that it will disclose nothing relevant.

Charles Danzig:

I question as Mr. Justice Brennan did whether or not these records contain anything about any electronic information, an absent, an adversary hearing we will never know and illegality will be the rule rather than the exception.

Now, one of the issue of standing Your Honors our position has been made quite clear in the brief, I don’t think I have a time to really —

Potter Stewart:

But just let me ask you Mr. Danzig.

Charles Danzig:

Yes.

Potter Stewart:

I gather your position does go beyond, the one stated by Mr. Williams —

Charles Danzig:

Yes, Your Honor.

Potter Stewart:

You go all the way —

Charles Danzig:

I go all the way, I’m not — I don’t go there, I’m drawn there —

Potter Stewart:

Yes.

Charles Danzig:

As a result of what this Court has said about the deterrence theory of the exclusionary rule and also the other aspect of it of the —

Potter Stewart:

Well just simply stated it is that logically.

Charles Danzig:

There’s no —

Potter Stewart:

The exclusionary rule is designed to deter illegal action by government enforcement authority?

Charles Danzig:

There can be no —

Potter Stewart:

Then, no matter how they get it no matter who was hurt, they should never be able to use it?

Charles Danzig:

That’s absolutely right.

I go all the way and I add to that and strengthen that position and get me down that road the fact that if this Court has not adopt that rule that’s really putting the stamp of approval on the use of evidence that’s been illegally obtained and we’re talking in the context of the exclusionary rule.

Abe Fortas:

But again, that is not the issue because I take it that the Government is not contending for the right to use evidence obtained by electronic surveillance.

The question is what should be the mechanism?

What should be the mechanism for determining whether recorded or logged information obtained by electronic surveillance is arguably relevant to the prosecution or the defense in a particular case?

Would you agree with that?

Charles Danzig:

Oh, I think that’s the issue Your Honor, what is the mechanism, what procedure we would use.

Abe Fortas:

Because nobody here is — I understand that nobody here has argued.

In this case anyway — in these cases anyway, that even in national defense matters, unlawfully obtained information, information obtained as a result of unlawful electronic surveillance should be admissible in evidence.

Solicitor General says you may want to argue that in the later case where its national security case but he’s not arguing it now.

Charles Danzig:

I agree that that is the issue but I say that the procedure that the Government suggest is one that violates constitutional guarantees and that the only way a defendant’s rights has announced time and time again by this Court in a narrative situations or in different context has been that you must have an adversary hearing.

I say if we buy this or approved this position of an in camera inspection, that’s the end of this case.

William O. Douglas:

Well, Mr. Danzig, do you understand that the Government raises any standing question in either the Ivanov or that is asking that any standing question be litigated on remand?

Charles Danzig:

I don’t think it has come forth with that but the standing has been an issue projected by this Court and it’s limited for act of certiorari.

William O. Douglas:

Yes.

Charles Danzig:

And then for that reason —

William O. Douglas:

Oh, yes.

No, you’re quite correct and I was just wondering whether you understood the Government was raising it even though we ask it to be argued.

Charles Danzig:

Wait, Your Honor, there’s no need for them to raise it for the simple reason that if they get the in camera inspection, we’ll have nothing.

Now, we don’t reach the question of standing just as we don’t reach the question of national security and we don’t reach that question of whether the disclosure of these records or an adversary hearing involving cross-examination of agents will injure third persons.

We don’t get to that.

It’s a nice way of closing the door and not opening Pandora’s Box.

Abe Fortas:

What you’re saying is that between the Government’s none disclosure and the trial judges’ tendency to go along with the Government that this will be an idle ceremony.

Charles Danzig:

I say that —

Abe Fortas:

But will — you don’t really want us to assume that the Government is going to do something like that and the trial judge is going to be as (Inaudible) that would assume, do you?

Charles Danzig:

I don’t assume that at all but what I do assume is that the Government told the truth in this case when it said.

The submission of these records to a trial judge will convince him that there’s nothing arguably relevant to the prosecution.

I start with that and the judge must, and I say —

Abe Fortas:

So they — if that is so, that ought to end it, shouldn’t it?

Charles Danzig:

Well that will end it.

That will end it.

That’s exactly what they want to do but I say it’s wrong to end it there.

There’s got to be a full pledge inquiry.

Abe Fortas:

But suppose that that turns out to be the fact after a full pledge inquiry, that has absolutely nothing that is arguably relevant to the prosecution or the defense of the matter that they — let’s take a ridiculous illustration that they did but the premises and the only thing that they got was some conversation about the weather in the gulf, that suppose it.

Now don’t you think that that ought to end the matter in the sense that the prosecution goes in?

Charles Danzig:

If the defense can show nothing more than that that certainly ought to end the matter.

I don’t think the defense has the right to it when it said let me look at all your files.

It should be allowed to look at all files and examine all agents who had one time or another made these defendants the subject matter of the investigation.

The target of the electronic surveillance whether it was these defendants, co-conspirators, or third persons.

They come within the ambit of the illegal activity of the Government directed at them to gather evidence on them.

Potter Stewart:

Is it true that the only reason we know that there was electronic surveillance in this case is because of the voluntary disclosure of that fact by the Government after the trial?

Charles Danzig:

I think that is so Your Honor.

Potter Stewart:

And that was done in conformity with what has been described as current government policy, is that right?

Charles Danzig:

I think that is so.

Well, just the current government policy is will tell you a little bit, not everything.

Charles Danzig:

But we want to tell it to the judge and not to you.

Potter Stewart:

I’m just — it occurred to my mind is that, what if the policy should change?

Charles Danzig:

And they tell us nothing?

Potter Stewart:

Yes.

Do you think you — do you think the defendant in every case has a right to file a motion or interrogatory or something —

Charles Danzig:

I think —

Potter Stewart:

— on that line to ask the Government whether there was any —

Charles Danzig:

I think so Your Honor because if we’re going to put an end to this dirty business of eavesdropping and invading privacy and violating Fourth Amendment rights, there should be some remedy available to a defendant to raise that question.

Now, that would not make everybody in the United States eligible to raise the question, it’s only those who are accused of crime or gets involved with Government — with the Government.

Thank you.

Earl Warren:

Thank you.

Mr. Solicitor General.

Erwin N. Griswold:

Mr. Chief Justice, may it please the Court.

I would not have supposed that it would have been suggested that this was not a case involving the national security.

The fact is that Butenko is an American citizen was employed by the International Electronic Company which was under contract with the Air Force to produce a command and control system for the strategic air command.

The system includes data processing and computer programming equipment designed to store and transmit operational information such as the location of aircraft and distances from targets which will enable the commander of the strategic air command to alert and execute all these forces at extremely rapid rate and provide him with up to the minute information on the status of the total force.

The information supplied by the system may be provided either as a picture projected on a screen or printed page form and Butenko who had top secret clearance was the control administrator for the projects field operations division with complete clearance and there isn’t any doubt that he turned over materials to a foreign country.

Now, it’s true that the phrase national security can be use loosely.

It can be use for example to relate to efforts to combat organized crime and things of that sort as we have used it in these cases that relate solely to relations with foreign nations and to efforts to guard against espionage and to protect military and national secrets of the United States.

I would emphasize again that we are not in this case seeking to argue that the evidence is admissible although I can conceive of cases as for example if information is obtained that there is a ship on the high seas which contains a nuclear device which when the ship gets to New York Harbor, it is going to be exploded and by virtue of the very effective and determined detective skill, it is not only found where the ship is but it is also found that it was being brought here by group of Americans who were seeking to takeover the Government.

At some point, it sees to me there ought to be freedom to argue that whatever method was used to obtain evidence with respect to that transaction is not an unreasonable search under the Fourth Amendment.

Potter Stewart:

I suppose something that doesn’t take place in the United States isn’t covered by the Fourth Amendment, is it?

Erwin N. Griswold:

Well, Mr. —

Potter Stewart:

Suppose electronic surveillance in England for instance in disclosing espionage in the United States.

There’s no problem with the Fourth Amendment because England doesn’t have a Fourth Amendment.

Erwin N. Griswold:

But if it is done by United States activities by officers of the United States, I would find it difficult to argue with the Fourth Amendment whatever it means.

It’s not applicable to those officers of the United States.

Potter Stewart:

What other view, you mean that something happens in Iran and France or Italy?

Erwin N. Griswold:

Well, I suppose a —

Potter Stewart:

The hand is covered by the Fourth Amendment of the United States?

Erwin N. Griswold:

Well yes Mr. Justice, I suppose that a court martial trial in Germany is governed by the Fifth Amendment — a court martial trial in the United States — of the United States military person if it is an effort to exercise the force or power of the United States.

Now that power is limited by the Fifth Amendment and by the Fourth Amendment, I would assume.

Anyway, we don’t have that involved here, the evidence —

Abe Fortas:

Let me ask then in your illustration Mr. Solicitor General.

Suppose the information used — to be used in the prosecution of the Americans who are bringing a nuclear ship in the New York Harbor, I assume they plan to get out before the nuclear explosion occur?

Erwin N. Griswold:

Never got to stay far enough away so that they could move in after they can —

Abe Fortas:

I suppose that the agents of the Government broke into their office and took without a warrant or probable cause or anything else documents were, could those later be used?

Would your argument, those will be used?

Erwin N. Griswold:

Yes, Mr. Justice, I wouldn’t regard as different from this.

The question is what is an unreasonable search or seizure and I think reasonable has to be construed in the light of all the facts or circumstances.

Mr. Danzig has talked about how nefarious the Government is in these places.

All I can say is that five persons and 10 attorney general have regarded it as appropriate, legitimate and necessary to do what is — has been done here and anyone who carries a responsibility of protecting the people of this country against possible foreign attack will recognize the need to be very thorough and comprehensive in that task.

Hugo L. Black:

General, pardon me, may I ask you if your argument leads to the conclusion and an unreasonable search, one of the circumstances determine whether it’s unreasonable.

Is there enormity of crime?

Erwin N. Griswold:

Yes, Mr. Justice, I would think that’s a way of putting it with the only crime that is enormous enough, it seems to me would be massive treason, massive destruction of people and property of the country.

I would not make it applicable to any ordinary crime.

Hugo L. Black:

What about if a massive murder?

Erwin N. Griswold:

It depends on how big the mass is if it’s by nuclear weapons I might be willing —

Hugo L. Black:

I’m not to say I am willing to disagree or agree with you but I want to know your view of it about a mass murder.

Erwin N. Griswold:

All that I am trying to do Mr. Justice is to reserve what the future with respect to a case that the awful facts of which I cannot now imagine.

The right to contend that very vigorous and thorough activities made by the people responsible for protecting the country are not such as to prevent the evidence obtained by those activities from being admitted into evidence.

We are not making any such argument here.

We are not contending that any evidence obtained by these methods or any evidence which was produced from a lead obtained from this evidence of these methods is admissible in this case.

We are arguing here simply that in a situation where it is perfectly plain that the electronic surveillance had no relation whatever to the evidence produced at the trial that we should be free to establish that fact for the United States District Judge without its being disclose not merely to the defendant but as an inevitable in the case of this sort to the other nation which may be involved.

Earl Warren:

General is — I’ll say two things that we’ve got to consider here, one, a question of the violation or alleged violation of the individual rights of the person who is on trial for his life, for his liberty; and secondly, the power of deterrence from doing illegal things by the Government.

Now, we’ve read in the past and everyone has I think that the Government from time to time has disavowed any wiretapping or any bugging except that it has been said in a very, very few national security cases I think the figures has been as low as 20 or 30 in the country at a particular time and now we find out that after the new policy the government is concerned that it has been announced that there had been bugging in all fields.

We find in the Katz case, in the little old gambling case that ended up in the fine of $200.00 that the Government bugged this place for over a month, night and day and we find that there are great many — apparently a great many internal revenue cases where they have bugged the person just on income tax violations and still the Government asserts that its only done in national security cases.

Now, don’t we have the fashion or rule that will prevent the Government from doing that very thing if there is a way of permitting wiretapping or other bugging in national security cases shouldn’t there be a law designed to accomplish that purpose and hasn’t the Congress design such a law?

It doesn’t affect these cases but I would assume that if we have a proper deterrent so far as illegal wiretapping is concerned that the Government will thereafter follow the law as long as it is sustained.

Now would the effect to that law is we don’t know but there’s Constitution or not, we don’t know but should we not in a future require the Government in all cases whether it’s national security or not to abide by the law that Congress made?

Earl Warren:

And if the Congress has said its illegal under the communication had to do what has been done shouldn’t we abide by that?

Erwin N. Griswold:

Mr. Justice, may I say in personal answer to that, what was done in the Katz case was legal when it was done.

It only became illegal as result of the Katz decision itself.

Earl Warren:

Well, I don’t sense that it follows.

Erwin N. Griswold:

It was produced.

It was within decision of the Court itself standing —

Earl Warren:

If the Court had said that that was legal at that time, I think we’d follow it.

Erwin N. Griswold:

It is true that during the past summer, Congress has enacted the statute which expressly excludes national security situations or expressly authorizes the surveillance and national security situation.

Earl Warren:

But in certain matter — in a certain matter not anyway they want to do it.

Erwin N. Griswold:

It’s in quite broad term Mr. Justice when authorize by the attorney — Mr. Chief Justice when authorize by the attorney general.

And finally, with respect to what your question, great many things happened prior to 1965, many things which I regret, many things which have cost great difficulties for me and through us for the courts.

Earl Warren:

I know that.

Erwin N. Griswold:

Since 1965, the requirements have been very clear and very specific, there is no eavesdropping or bugging whatever since 1965 and no case were there has been any evidence whatever that there has been bugging or eavesdropping except in the cases of national security.

The passage in the act to pass by Congress this summer, the Omnibus Crime Control and Safe Streets Act is on page 7 of our brief in Ivanov and Butenko.

Nothing contained in this chapter or in Section 605 of the Communications Act shall limit the constitutional power of the President to take such measure as he deemed necessary, to protect the nation against actual or potential attack or other hostile acts of a foreign power to obtain foreign intelligence information deemed to central for the security of the United States or to protect national security information against foreign intelligence activities.

And all that we would contend for would be a decision here which would leave that statement by Congress in effective operation and if there has to be disclosure of merely incidental and I would like to point out counsel in the other side quite appropriately contended in terms of methods of material and inevitable connection with the case involved.

The fact is that in a number of these situations, people just wander in to a surveillance.

It’s perfectly incidental, perfectly accidental, perfectly obvious that nothing out of it has any relation to the subsequent and wholly unrelated crime.

We have felt that whenever the name appears that we must make disclosure to this Court as we have what we do feel that the details that the defendant can be adequately protected if the details are disclose to the district judge and he can determine that nothing happened which was arguably relevant to the particular prosecution.

Earl Warren:

Mr. Solicitor General, your last statement, caused me to ask a question which I’m interested.

As I understand, you are basing your distinction between national security and cases that do not involved national security on the rule fashioned by Congress on that field and not on the cont — interpretation or the contribution itself?

Erwin N. Griswold:

No, Mr. Justice.

I don’t understand that the recent Act of Congress necessarily controls these cases.

I know nothing in it which is formally retroactive, I would suppose that the decision made in this case would have to be one fashioned by this Court out of the materials which are available to Court which would include the several provisions of the Constitution and I point out several because it’s not only the Fourth Amendment, it’s also the powers granted to the President.

The long continued practice which goes back to the origins of the republic undoubtedly to the necessities of the situation, to the practicalities of the situation and when all of these are taken into account, I think you are confronted with a balancing consideration between the terms of the Fourth Amendment which are not absolute.

They provide against unreasonable searches and seizures.

We’ve long been guarded and long been warned against the pressing constitutional doctrines to their logical extreme and when you take into account all of the factors involved here, it seems to me that you can come up with an appropriate construction of the Fourth Amendment in the circumstances in this case which will adequately protect the rights of the defendant by providing for disclosure in the first instance to the district judge.

Earl Warren:

Before we pass to the next case, I’d like to say to Mr. Danzig that we appreciate sir, your representation of this indigent defendant.

We’re always confident by the fact that lawyers are willing to devote their attention on assignment to cases of that time we consider the real public service and we thank you sir for being one of those who has undertaken that burden; and General we want to say to you that we likewise appreciate your representation of the Government in this very troubled scenario which we know has been personally troublesome to you also and we thank you for what you have done on this case.

Can I ask the General —

Earl Warren:

Yes, certainly.

— one question.

Earl Warren:

Certainly.

Does the question standing on the potential (Voice Overlap)?

Erwin N. Griswold:

No.

I think not Mr. Justice but I think it is on disclosure to the district judge by the district judge himself.

I don’t think you’ll get to it because he will immediately see that there is nothing which is by any conceivable stretch of imagination relevant to the case.

But the —

Erwin N. Griswold:

You might get a more limited disclosure.

Potter Stewart:

I would — just going to happen if I would think to get to the standing question first if there is standing; there wouldn’t be any disclosure of the judge or anybody else.

Erwin N. Griswold:

If it turns out with a standing proposition, we — you may have to have more separate trials when you know that in advance in which case there might not be any disclosure —

Potter Stewart:

But you would, I would think and I would suppose you would say that unless A has standing to object that he — that you wouldn’t if he’s the defendant, you wouldn’t unless he has standing you wouldn’t have to turnover the judge, any of the tapes to —

Erwin N. Griswold:

Yes.

I think that would be our position.

No matter what rule the Court makes, there’s known to be an area where the Government is going to have exercise some kind of judgment.