On application for bail pending petition for writ of certiorari
to the United States Supreme Court.
Mr. Justice DOUGLAS, dissenting.
Mr. Justice Holmes in Olmstead v. United States,
277 U.S.
438, 470 (dissenting), called wire-tapping 'dirty business.'
That decision was rendered in 1928. Since that time 'dirty
business' has become the apt phrase describing the regime under
which we now live. The warrant requirement which this Court imposed
as a condition to that kind of surveillance, Berger v. New York,
388 U.S. 41, and
the Act of Congress which implemented that decision, 18 U.S.C.
2510-2520, United States v. United States District Court,
407 U.S. 297, have been
flouted. We who live in the District of Columbia know that
electronic surveillance is commonplace. I am indeed morally certain
that the Conference Room of this Court has been 'bugged'; and
President Johnson during his term in the White House asserted to me
that even his phone was tapped.
We deal with a disease that has permeated our society. Certainly
Ms. Heutsche is an 'aggrieved' person within the meaning of 18
U.S.C. 3504(a)( 1).1 That section
Page 414 U.S.
898 , 899
does not restrict its protection to conversations of an accused.
It should be liberally construed as it deals with the right of
privacy protected by the Fourth Amendment. The conversation of
one's lawyer over the telephone may be as helpful to Big Brother as
the conversation of the accused herself. The lawyer preparing the
defense may in his telephone conversations reveal concessions made
by the accused or his trial strategy or clues to the defense which
will be proferred that may be extremely helpful to the prosecution.
If electronic surveillance were strictly employed by the Executive
Branch, we might be chary in enlarging its duties as requested
here. But since we live in a regime where the 'dirty business' of
wiretapping runs rampant, I would apply the statute liberally to
check the disease which almost every newspaper tells us has
poisoned out body politic.
We are told that in this case the applicant's lawyers did
discuss her case with persons other than herself over the
telephone. Is Big Brother to have a ringside seat where he can
listen to all the confidences of lawyers who defend an accused? If
so, what happens to the valued right of counsel protected by the
Sixth Amendment?
On June 26, 1972, Margaret Heutsche, the applicant herein, was
arrested by the FBI on charges relating to the removal and
destruction of Government property from a Selective Service System
office. Although a preliminary hearing resulted in a finding of
probable cause, she remained free on her own recognizance and heard
nothing further on the case until called to testify before a
federal grand jury nearly a year later. When she invoked her
constitutional right to refrain from testifying the Government
obtained a grant of use immunity pursuant to 18 U.S.C. 6002 and an
order from the District Court compelling the applicant to testify.
The
Page 414 U.S.
898 , 900
applicant again refused to testify and sought reconsideration of
the District Court order, claiming that the subpoena and the
questions propounded by the grand jury were the product of illegal
electronic surveillance of her and that the Government had not
properly affirmed or denied that claim as required by 18 U.S.C.
3504.2 She claims that the same barrier extends to her lawyer. The
applicant also moved for a disclosure of any electronic
surveillance of her attorneys and their consultants, and for an
evidentiary hearing on the sufficiency of the disclosure.
In response to the motions, the Government filed the affidavit
of a high Justice Department official to the effect that, based on
an inquiry addressed to seven federal agencies:3
'[T]here has been no electronic
surveillance occurring on premises known to have been owned, leased
or licensed by Margaret Ann Heutsche.
'The deponent further states that
there was no electronic surveillance directed against Margaret Ann
Heutsche, per se, and there have been no known overhearings by
electronic surveillance at any location of conversations to which
Margaret Ann Heutsche was a party.'
The applicant maintained that the surveillance denial was
inadequate for, inter alia, failing to deny electronic surveillance
of her attorneys and their associates and consultants which may
have yielded conversations concerning her case. The applicant
submitted affidavits
Page 414 U.S.
898 , 901
from several attorneys and consultants who swore that they
discussed her case among themselves over phone lines on which all
had been experiencing strange and suspicious problems. [
Footnote 4] On the basis of these
affidavits the applicant requested an evidentiary hearing as to
illegal electronic surveillance. The District Court denied relief
and, upon the applicant's further refusal to testify, the
Government moved that she be adjudged in contempt and ordered
committed. Applicant submitted further affidavits and moved to
cross-examine the Justice Department official who denied the
existence of electronic surveillance.
The District Court again denied her motions and held applicant
in contempt, ordering her submitted to the custody of the United
States Marshal. The Court of Appeals affirmed, finding that the
applicant had made no showing which would require the Government to
make an investigation of electronic surveillance of her attorneys.
The case is before this Court on the application of Ms. Heutsche to
be released from custody pending review here of the decision of the
Court of Appeals. The applicable standard for the relief sought is
found in 28 U.S.C. 1826(b), which directs denial only if the issues
are frivolous or the appeal is taken for purposes of delay. Since
the term of the grand jury is to expire in December, denial of the
requested relief will likely result in applicant's having served
her entire term before this Court can ever reach a decision on the
merits of her claim. Although a grant of the relief would deprive
the Government of the compulsion designed to induce recalcitrant
witnesses to testify before this particular grand jury, the
Government, if vindicated in this Court on the merits, may subpoena
the applicant before another grand jury and bring to bear the
compulsion of another court order in order to obtain the testimony
it seeks. The imminent running of the term of the grand jury
therefore weights heavily in favor of granting the relief.
On the merits I cannot agree that the applicant's showing is not
sufficient at least to entitle her to an evidentiary hearing. In a
country where the Government overhears
Page 414 U.S.
898 , 902
over 500,000 conversations a year pursuant to court authorized
wiretaps alone,5 it is difficult to gainsay anyone's fear of the
intrusion of Big Brother's ear. The daily news brings fresh
evidence to make a reality of Chief Justice Warren's warning that
the 'fantastic advances in the field of electronic communication
constitute a great danger to the privacy of the individual. . . .'6
In such circumstances the Govern-
Page 414 U.S.
898 , 903
ment's claim that it should not be put to the task of searching
its files for evidence of specific surveillance cannot be treated
lightly. I take cognizance of the fact that the mass of aggregate
data on the citizenry yielded in this Orwellian era may indeed make
the task a difficult one.
But the difficulty which should concern us is that faced by the
victim of illegal surveillance. How is the applicant in this case
to establish the existence of such clandestine activity so expertly
carried on by the Executive Branch? She has introduced sworn
statements that her attorneys-themselves likely subjects of
government surveillance,7- discussed her case over phone lines
fraught with indicia of intrusion. She has introduced further sworn
statements that electronic tests reveal a likelihood of such
intrusion. Yet the Court below held this insufficient even to
require the Government to check its records on specific phone lines
identified by the applicant.
The victims of illegal governmental surveillance are thus
apparently faced with the insurmountable task of proving such
surveillance before the Government will be asked to respond to
allegations of its existence or participate in an evidentiary
hearing to decide the matter. In seeking review of that holding the
applicant raises serious issues of constitutional magnitude. She
has alleged Government misconduct interfering not only with her
right to privacy but with her right to the effec-
Page 414 U.S.
898 , 904
tive assistance of counsel by destroying her attorneys' ability
to discuss her case in confidence. Having shown all anyone will
ever be able to show in this area prior to a Government response,
she further questions how those constitutional rights have any
meaning, when more is required before the victim of illegal
surveillance is even entitled to a hearing. These are serious
questions of broad impact in an area not yet expounded upon by this
Court. In denying the requested interim relief, can the Court
possibly hold the attempt to raise those questions is frivolous? I
would grant bail, expedite the grant of certiorari and put the case
down for early argument and decision.
Footnotes
Footnote 1 ' 3504. (a) In
any trial, hearing, or other proceeding in or before any court,
grand jury, department, officer, agency, regulatory body, or other
authority of the United States--
'(1) upon a claim by a party
aggrieved that evidence is inadmissible because it is the primary
product of an unlawful act or because it was obtained by the
exploitation of an unlawful act, the opponent of the claim shall
affirm or deny the occurrence of the alleged unlawful act; . .
..'
Footnote 2 See n. 1.
Footnote 3 The widespread
use of electronic surveillance is demonstrated by the list of
agencies consulted before making the denial; FBI; Bureau of
Narcotics and Dangerous Drugs; Secret Service; IRS; Customs; Bureau
of Alcohol, Tobacco and Firearms; and the Postal Service.
Footnote 4 At various times
the affiants had difficulty placing calls, heard clicking noises
over the lines, and heard strange voices and the sound of tape
recorders in the background. In addition, a consultant with a Ph.
D. in physics conducted relative field strength tests on the phone
line of one of the attorneys and stated his belief that a radio
frequency monitoring system had been applied to the line.
Footnote 5 Administrative
Office of the United States Courts, Report on Applications for
Orders Authorizing or Approving the Interception of Wire or Oral
Communications, 1972 table 4.
In 1955 I stated that:
'During 1952 there were in New York
City alone at least 58,000 orders issued which allowed
wiretapping-over 150 a day every day in the year. The New York
system has in fact been oppressive; it has been used as the means
whereby police have obtained guarded confidences of people and used
the information for corrupt purposes.' W. Douglas, An Almanac of
Liberty 355 ( 1955).
After reading this statement District Attorney Edward Silver of
New York attempted to obtain wiretap data from District Attorneys
and police. He reported to the House Judiciary Committee that the
total was only 480. Hearings on H. R. 766 Before Subcomm. No. 5 of
the House Comm. on the Judiciary, 84th Cong., 1st Sess. 99 (1956).
The committee called Sidney Davis, former Law Clerk for Mr. Justice
Black and the New York attorney who had helped me on the study. He
testified as to a misunderstanding between us: there were not
58,000 orders but 58,000 taps, including illegal taps. Id., at 203.
District Attorney Frank Hogan of New York testified that claims of
illegal wiretapping of such magnitude were 'the cries of alarmists
. . . who are inclined to . . . inflate incidents and conditions in
order to sustain their arguments.' Id., at 322. But the 'cries of
alarm' proved realistic. In 1959, Samuel Dash, on the basis of
extrapolations from manhour statistics on policemen admittedly
engaged in wiretapping activity, concludes that my estimates of
that activity were 'closer to the truth than the figures submitted
by the police to [Edward Silver].' S. Dash, The Eavesdroppers 68-69
(1959).
Footnote 6 Lopez v. United
States,
373 U.S.
427, 441d 462 (1963) (Chief Justice Warren, concurring).
Footnote 7 Her attorneys
include members of the San Francisco chapter of the National
Lawyers Guild and an organization in Chicago known as the 'Peoples
Law Office.' Peoples is a firm almost exclusively devoted to the
criminal defense of 'militants' and 'radicals,' including Chairman
Fred Hampton of the Black Panther Party and Bernadine Dohrn and
Marc Rudd of the Weatherman faction of the SDS.
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