Under Title III of the Omnibus Crime Control and Safe Streets
Act of 1968 each application for a court order authorizing the
interception of a wire or oral communication, 18 U.S.C. §
2518(1)(a), and each interception order, 18 U.S.C. § 2518(4)(d),
must identify the officer authorizing the application, and the
Attorney General, or an Assistant Attorney General specially
designated by him, may authorize the application, 18 U.S.C. §
2516(1). The contents of intercepted communications, or evidence
derived therefrom, may not be received in evidence at a trial if
the disclosure of the information would be "in violation of" Title
III, 18 U.S.C. § 2515, and may be suppressed on the grounds,
inter alia, that the communication was "unlawfully
intercepted," 18 U.S.C. § 2518(10)(a)(i), or that the interception
order was "insufficient on its face," 18 U.S.C. § 2518(10)(a)(ii).
In this case, the applications and orders to wiretap the telephones
of respondents Chavez and Fernandez, two narcotics offense
suspects, incorrectly identified an Assistant Attorney General as
the official authorizing the applications, whereas, with respect to
Chavez, it had been the Attorney General, and, with respect to
Fernandez, the Attorney General's Executive Assistant. After
Chavez, Fernandez, and the other respondents were indicted, the
District Court, on respondents' motions, held that the evidence
secured through both wiretaps had to be suppressed for failure of
the applications or orders to identify the individual who actually
authorized the application, and further, as to the Fernandez
wiretap, because neither the Attorney General nor a specially
designated Assistant Attorney General authorized the application.
The Court of Appeals affirmed in all respects.
Held:
1. Because the application for the interception order on the
Fernandez phone was authorized by the Attorney General's Executive
Assistant, rather than by the Attorney General or any specially
designated Assistant Attorney General, on whom alone § 2516(1)
confers such power, evidence secured under that order
Page 416 U. S. 563
was properly suppressed.
United States v. Giordono,
ante, p.
416 U. S. 505. Pp.
416 U. S.
569-570.
2. Misidentifying the Assistant Attorney General as the official
authorizing the Chavez wiretap, when the Attorney General himself
actually gave the approval, was in no sense the omission of a
requirement that must be satisfied if wiretapping or electronic
surveillance is to be lawful under Title III, and hence does not
require suppression of the wiretap evidence.
United States v.
Giordano, supra, distinguished. Pp.
416 U. S.
570-580.
(a) Where it is established that responsibility for approval of
the application is fixed in the Attorney General, compliance with
the screening requirements of Title III is assured, and there is no
justification for suppression. Pp.
416 U. S.
571-572.
(b) The interception order was not "insufficient on its face"
within the meaning of § 2618(10)(a)(ii), since the order clearly
identified "on its face" the Assistant Attorney General as the
person authorizing the application, he being a person who, under §
2516(1), could properly give such approval if specially designated
to do so as the order recited, notwithstanding this was
subsequently shown to be incorrect. Pp.
416 U. S.
573-574.
(c) The misidentification of the officer authorizing the wiretap
application did not affect the fulfillment of any of the reviewing
or approval functions required by Congress, and, by itself, does
not render the interception conducted under the order "unlawful"
within the meaning of § 2518(10)(a)(i) or the disclosure of the
content of the interceptions, or derivative evidence, otherwise "in
violation of" Title III within the meaning of § 2515, there being
no legislative history concerning §§ 2518(1)(a) and (4)(d) to
suggest that they were meant, by themselves, to occupy a central,
or even functional, role in guarding against unwarranted use of
wiretapping or electronic surveillance. Pp.
416 U. S.
574-580.
478 F.2d 512, affirmed in part, reversed in part, and
remanded.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS,
J., filed an opinion concurring in part and dissenting in part, in
which BRENNAN, STEWART, and MARSHALL, JJ., joined,
post,
p.
416 U. S. 580.
Page 416 U. S. 564
MR. JUSTICE WHITE delivered the opinion of the Court.
This case, like
United States v. Giordano, ante, p.
416 U. S. 505,
concerns the validity of procedures followed by the justice
Department in obtaining judicial approval to intercept wire
communications under Title III of the Omnibus Crime Control and
Safe Streets Act of 1968, 82 Stat. 211-225, 18 U.S.C. §§ 2510-2520,
and the propriety of suppressing evidence gathered from
court-authorized wiretaps where the statutory application
procedures have not been fully satisfied. As is more fully
described in
Giordano, Title III limits who, among federal
officials, may approve submission of a wiretap application to the
appropriate district court, to the Attorney General, or an
Assistant Attorney General he specially designates, 18 U.S.C. §
2516(1), and delineates the information each application must
contain, upon what findings an interception order may be granted,
and what the order shall specify, 18 U.S.C. §§ 2518(1), (3), (4).
[
Footnote 1] Within this
general framework, two statutory requirements are of particular
relevance to this case. Section 2518(1)(a) provides that each
application for a court order authorizing or approving the
interception of a wire or oral communication shall include, among
other information, "the identity of the . . . officer authorizing
the application." Similarly, § 2518(4)(d) provides that the order
of authorization or approval itself shall specify, in part, "the
identity of . . . the person authorizing the application."
Page 416 U. S. 565
The specific question for adjudication here, which it was
unnecessary to resolve in
Giordano, is whether, when the
Attorney General has, in fact, authorized the application to be
made, but the application and the court order incorrectly identify
an Assistant Attorney General as the authorizing official, evidence
obtained under the order must be suppressed. We hold that Title III
does not mandate suppression under these circumstances.
I
Respondents were all indicted for conspiracy to import and
distribute heroin in violation of 21 U.S.C. § 173, 174 (1964 ed.).
In addition, respondent Umberto Chavez was separately charged under
18 U.S.C. § 1952 with using and causing others to use a telephone
between California and Mexico, and performing other acts, in order
to facilitate unlawful narcotics activity, and respondent James
Fernandez was charged under § 1952 with traveling between
California and Mexico, and performing other acts, for the same
purpose. Upon notification that the Government intended to
introduce evidence obtained from wiretaps of Chavez' and Fernandez'
phones at trial, respondents filed motions to suppress, challenging
the legality of the Justice Department's application procedures
leading to the issuance by the District Court of the two orders
permitting the wire interceptions. Affidavits filed in opposition
by the Attorney General and his Executive Assistant represented
that the application submitted for the February 18, 1971, order
authorizing interception of wire communications to and from the
Chavez phone had been personally approved by the Attorney General,
whereas the application for the February 25, 1971, order to
intercept communications to and from the Fernandez phone had been
approved by his Executive Assistant at a time when the Attorney
General
Page 416 U. S. 566
was unavailable, and pursuant to an understanding that the
Executive Assistant, applying the Attorney General's standards as
he understood them, could act for the Attorney General in such
circumstances.
Each application to the court had recited, however, that the
Attorney General, pursuant to 18 U.S.C. § 2516, had "specially
designated" the Assistant Attorney General for the Criminal
Division, Will Wilson, "to authorize [the applicant attorney] to
make this application for an Order authorizing the interception of
wire communications." Moreover, appended to each application was a
form letter, addressed to the attorney making the application and
purportedly signed by Will Wilson, stating that the signer had
reviewed the attorney's request for authorization to apply for a
wiretap order pursuant to 18 U.S.C. § 2518, and had made the
requisite probable cause and other statutory determinations from
the "facts and circumstances detailed" in the request, and that
"you are hereby authorized under the power specially delegated
to me in this proceeding by the Attorney General . . pursuant to
the power conferred on him by Section 2516 . . . to make
application"
for a wire interception order. Correspondingly, the District
Court's intercept order in each case declared that court approval
was given
"pursuant to the application authorized by . . . Will Wilson,
who has been specially designated in this proceeding by the
Attorney General . . . John N. Mitchell, to exercise the powers
conferred on the Attorney General"
by § 2516.
The discrepancy between who had actually authorized the
respective applications to be made, and the information transmitted
to the District Court clearly indicating that Assistant Attorney
General Wilson was the authorizing official, was explained as the
result of a standard procedure followed within the Justice
Department.
Page 416 U. S. 567
While the Attorney General had apparently refrained from
designating any Assistant Attorney General to exercise the
authorization power under § 2516(1), form memoranda were routinely
sent from his office, over his initials, to Assistant Attorney
General Wilson, stating that "with regard to your recommendation
that authorization be given" to make application for a court order
permitting wire interception, "you are hereby specially designated"
to exercise the power conferred on the Attorney General by § 2516
"for the purpose of authorizing" the applicant attorney to apply
for a wiretap order. Evidently, this form was intended to reflect
notice of approval by the Attorney General, though, on its face, it
suggested that the decision whether to authorize the particular
wiretap application would be made by Assistant Attorney General
Wilson. In fact, as revealed by the affidavits of Wilson's then
Deputy Assistants filed in opposition to respondents' suppression
motions, "Wilson did not examine the files or expressly authorize
the applications" for either the February 18 or February 25
interception orders, and they signed his name "in accordance with
[his] authorization . . . and the standard procedures of the
Criminal Division" to the respective letters of authorization to
the applicant attorney, which were made exhibits to the
applications. The signing of Wilson's name was regarded as a
"ministerial act" because of Wilson's authorization to his
Deputies
"to sign his name to and dispatch such a letter of authorization
in every instance in which the request had been favorably acted
upon in the Office of the Attorney General."
The District Court held that the evidence secured through both
wiretaps had to be suppressed for failure of either of the
individuals who actually authorized the applications to be
"identified to Chief Judge Carter, Congress or the public" in the
application or orders, as
Page 416 U. S. 568
mandated by §§ 2518(1)(a) and (4)(d), respectively. Moreover,
evidence obtained under the February 25 wiretap order on the
Fernandez phone was separately suppressed because the Government
admitted that "neither the Attorney General nor a specially
designated Assistant Attorney. General ever authorized the
application," as § 2516(1) requires.
The Court of Appeals affirmed in all respects. 478 F.2d 512.
With respect to the Chavez tap, the Court of Appeals assumed, as
had the District Court, that the Attorney General had personally
approved the request for authority to apply for the interception
order, as his affidavit stated. Nonetheless, the misidentification
of Assistant Attorney General Wilson as the authorizing official
was deemed to be a "misrepresentation" and an "apparently
deliberate deception of the courts by the highest law officers in
the land,"
id. at 515, 517, which required suppression of
evidence gathered from the tap for failure to comply with 18 U.S.C.
§§ 2518(1)(a) and (4)(d). Congress was held to have "intended to
eliminate any possibility that the authorization of wiretap
applications would be institutional decisions," and the Court of
Appeals was fearful that, if the misidentification which occurred
in this case were approved, "there would be nothing to prevent
future Attorneys General from remaining silent if a particular
wiretap proved embarrassing." 478 F.2d at 516.
We granted certiorari, 412 U.S. 905, to resolve the conflict
between the position taken by the Ninth Circuit in this case on the
issue of suppression because of inaccurate identification of the
officer authorizing the application and the position taken by every
other circuit that has considered the question. [
Footnote 2] We agree with those other
Page 416 U. S. 569
courts of appeals that misidentifying the Assistant Attorney
General as the official authorizing the wiretap application to be
made does not require suppression of wiretap evidence when the
Attorney General himself has actually given the approval; hence, we
reverse that portion of the judgment suppressing the Chavez wiretap
evidence and remand for further proceedings to permit the District
Court to address other challenges to the Chavez wiretap evidence
which respondents had made but the District Court did not find it
necessary to consider. [
Footnote
3] Because
Page 416 U. S. 570
the application for the interception order on the Fernandez
phone was authorized by the Attorney General's Executive Assistant,
rather than by the Attorney General or any specially designated
Assistant Attorney General, on whom alone 18 U.S.C. § 2516(1)
confers such power, evidence secured under that order was properly
suppressed for the reasons stated in the opinion filed today in
United States v. Giordano, ante, p.
416 U. S. 505.
Accordingly, that portion of the judgment suppressing the Fernandez
wiretap evidence is affirmed.
II
The application and order for the Chavez wiretap did not
correctly identify the individual authorizing the application, as
18 U.S.C. §§ 2518(1)(a) and (4)(d) require. Of this there is no
doubt. But it does not follow that, because of this deficiency in
reporting, evidence obtained pursuant to the order may not be used
at a trial of respondents. There is no claim of any constitutional
infirmity arising from this defect, nor would there be any merit to
such a claim, and we must look to the statutory scheme to determine
if Congress has provided that suppression is required for this
particular procedural error.
Section 2515 provides that the contents of any intercepted wire
or oral communication, and any derivative evidence, may not be used
at a criminal trial, or in certain other proceedings, "if the
disclosure of that information would be in violation of this
chapter."
Page 416 U. S. 571
Aggrieved.persons may move, in a timely manner under §
2518(10)(a), to suppress the use of such evidence at trial on the
grounds that
"(i) the communication was unlawfully intercepted;"
"(ii) the order of authorization or approval under which it was
intercepted is insufficient on its face; or"
"(iii) the interception was not made in conformity with the
order of authorization or approval."
In
United States v. Giordano, supra, we have concluded
that Congress, in 18 U.S.C. § 2516(1), made preliminary approval of
submission of wiretap applications a central safeguard in
preventing abuse of this means of investigative surveillance, and
intentionally restricted the category of federal officials who
could give such approval to only the Attorney General himself or
any Assistant Attorney General he might specially designate for
that purpose. Hence, failure to secure approval of one of these
specified individuals prior to making application for judicial
authority to wiretap renders the court authority invalid and the
interception of communications pursuant to that authority
"unlawful" within the meaning of 18 U.S.C. § 2518(10)(a)(i).
Failure to correctly report the identity of the person authorizing
the application, however, when, in fact, the Attorney General has
given the required preliminary approval to submit the application,
does not represent a similar failure to follow Title III's
precautions against the unwarranted use of wiretapping or
electronic surveillance, and does not warrant the suppression of
evidence gathered pursuant to a court order resting upon the
application.
There is little question that §§ 2518(1)(a) and (4)(d) were
intended to make clear who bore the responsibility for approval of
the submission of a particular wiretap
Page 416 U. S. 572
application. Thus, the Senate Report accompanying the favorable
recommendation of Title III states that § 2518(1)(a) "requires the
identity of the person who makes, and the person who authorized the
application[,] to be set out. This fixes responsibility." S.Rep.
No. 1097 90th Cong., 2d Sess., 101 (1968). And § 2518(4)(d)
"requires that the order note the agency authorized to make the
interception and the person who authorized the application so that
responsibility will be fixed."
Id. at 103. Where it is established that responsibility
for approval of the application is fixed in the Attorney General,
however, compliance with the screening requirements of Title III is
assured, and there is no justification for suppression. Respondents
suggest that the misidentification of Assistant Attorney General
Wilson as the authorizing official was calculated to mislead the
District Judge in considering the wire interception applications,
and certainly had the effect of misleading him, since the
interception order also misidentified the authorizing official in
reliance on the statements made in the application. We do not
perceive any purpose to be served by deliberate misrepresentation
by the Government in these circumstances. To the contrary, we think
it cannot be seriously contended that had the Attorney General been
identified as the person authorizing the application, rather than
his subordinate, Assistant Attorney General Wilson, the District
Judge would have had any greater hesitation in issuing the
interception order. The same could not be said, of course, if, as
in
Giordano, the correct information had revealed that
none of the individuals in whom Congress reposed the responsibility
for authorizing interception applications had satisfied this
preliminary step. The District Court undoubtedly thought that
Wilson had approved the Chavez and Fernandez wiretap applications,
and we do not condone the Justice
Page 416 U. S. 573
Department's failure to comply in full with the reporting
procedures Congress has established to assure that its more
substantive safeguards are followed. [
Footnote 4] But we cannot say that misidentification was
in any sense the omission of a requirement that must be satisfied
if wiretapping or electronic surveillance is to be lawful under
Title III.
Neither the District Court nor the Court of Appeals made clear
which of the grounds set forth in § 2518(10)(a) was relied upon to
suppress the Chavez wiretap evidence. Respondents rely on each of
the first two grounds,
i.e., that the communications were
"unlawfully intercepted" and that the Chavez interception order is
"insufficient on its face." Support for the latter claim is drawn
from the District Court decision in
United States v.
Focarile, 340 F.
Supp. 1033, 1057-1060 (Md.),
aff'd on other grounds sub
nom. United States v. Giordano, 469 F.2d 522 (CA4 1972),
aff'd, ante, p.
416 U. S. 505,
which concluded that an order incorrectly identifying who
authorized the application is equivalent to an order failing to
identify anyone at all as the authorizing official. We find neither
of these contentions persuasive.
Here, the interception order clearly identified "on its face"
Assistant Attorney General Wilson as the person who authorized the
application to be made. Under § 2516(1), he properly could give
such approval had he been specially designated to do so by the
Attorney General,
Page 416 U. S. 574
as the order recited. That this has subsequently been shown to
be incorrect does not detract from the facial sufficiency of the
order. [
Footnote 5] Moreover,
even if we were to look behind the order despite the clear "on its
face" language of § 2518(10)(a)(ii), it appears that the Attorney
General authorized the application, as he also had the power to do
under § 2516(1). In no realistic sense, therefore, can it be said
that the order failed to identify an authorizing official who
possessed statutory power to approve the making of the application.
The claim that communications to and from the Chavez phone were
"unlawfully intercepted" is more plausible, but does not persuade
us, given the purposes to be served by the identification
requirements and their place in the statutory scheme of regulation.
Though we rejected, in
Giordano, the Government's claim
that Congress intended "unlawfully intercepted" communications to
mean only those intercepted in violation of constitutional
requirements, we did not go so far as to suggest that every failure
to comply fully with any
Page 416 U. S. 575
requirement provided in Title III would render the interception
of wire or oral communications "unlawful." To establish such a rule
would be at odds with the statute itself. Under § 2515, suppression
is not mandated for every violation of Title III, but only if
"disclosure" of the contents of intercepted communications, or
derivative evidence, would be in violation of Title III. Moreover,
as we suggested in
Giordano, it is apparent from the
scheme of the section that paragraph (i) was not intended to reach
every failure to follow statutory procedures, else paragraphs (ii)
and (iii) would be drained of meaning.
Giordano holds that
paragraph (i) does include any
"failure to satisfy any of those statutory requirements that
directly and substantially implement the congressional intention to
limit the use of intercept procedures to those situations clearly
calling for the employment of this extraordinary investigative
device."
Ante at
416 U. S.
527.
In the present case, the misidentification of the officer
authorizing the wiretap application did not affect the fulfillment
of any of the reviewing or approval functions required by Congress,
and is not within the reach of paragraphs (ii) and (iii). Requiring
identification of the authorizing official in the application
facilitates the court's ability to conclude that the application
has been properly approved under § 2516; requiring identification
in the court's order also serves to "fix responsibility" for the
source of preliminary approval. This information contained in the
application and order further aids the judge in making reports
required under 18 U.S.C. § 2519. [
Footnote 6] That section requires the judge
Page 416 U. S. 576
who issues or denies an interception order to report his action
and certain information about the application, including the
"identity of . . . the person authorizing the
Page 416 U. S. 577
application," within 30 days, to the Administrative Office of
the United States Courts, § 2519(1)(f). An annual report of the
authorizing officials designated in § 2516 must also be filed with
that body, and is to contain the same information with respect to
each application made as is required of the issuing or denying
judge, 2519(2)(a). Finally, a summary of the information filed by
the judges acting on applications and the prosecutors approving
their submission is to be filed with Congress in April of each year
by the Administrative Office, § 2519(3). The purpose of these
reports is "to form the basis for a public evaluation" of the
operation of Title III and to "assure the community that the system
of court-order[ed] electronic surveillance . . . is properly
administered. . . ." S.Rep. No. 1097, 90th Cong., 2d Sess., 107.
While adherence to the identification reporting requirements of §§
2518(1)(a) and (4)(d) thus can simplify the assurance that those
whom Title III makes responsible for determining when and how
wiretapping and electronic surveillance should be
Page 416 U. S. 578
conducted have fulfilled their roles in each case, it does not
establish a substantive role to be played in the regulatory
system.
Nor is there any legislative history concerning these sections,
as there is, for example, concerning § 2516(1),
see United
States v. Giordano, ante, at
416 U. S. 516
et seq., to suggest that they were meant, by themselves,
to occupy a central, or even functional, role in guarding against
unwarranted use of wiretapping or electronic surveillance. Though
legislation to regulate the interception of wire and oral
communications had been considered by Congress earlier, the
proposed statute drafted for the President's Commission on Law
Enforcement and Administration of Justice appears to have been the
first published proposal to contain a requirement that the
application for interception authority should specify "who
authorized the application." Task Force Report: Organized Crime,
App. C, p. 109, § 3803(a)(1) (1967). That proposed bill, which was
substantially followed in Title III, also provided for reports like
those now required by 18 U.S.C. § 2519, including information on
"the identity of . . . who authorized the application."
Id. at 111, §§ 3804(a)(6) and (b)(1). It did not, however,
require the order to contain this information.
Id. at 110,
§ 3803(e). S. 675, a bill introduced by Senator McClellan on
January 25, 1967, as the "Federal Wire Interception Act," 113
Cong.Rec. 1491, did not contain any of these identification
requirements. Hearings on Controlling Crime Through More Effective
Law Enforcement before the Subcommittee on Criminal Laws and
Procedures of the Senate Committee on the Judiciary, 90th Cong.,
1st Sess., 77-78, §§ 8(a), (d), 9(a) (1967). S. 2050, however, a
proposal by Senator Hruska to regulate both wiretapping and
electronic surveillance, did. Section 2518(a)(1) required an
interception application
Page 416 U. S. 579
to include "the identity of the person who authorized the
application," and §§ 2519(a)(6) and (b)(1) provided that judges and
authorizing prosecutors report "the identity of . . . who
authorized the application," but did not require that the order
contain this information, § 2518(e). Hearings,
supra at
1006-1008. The requirement that this information be contained in
the order as well as in the application and required reports, first
appeared in § 2518(e)(4) of H.R. 13482, 90th Cong., 2d Sess.
(1967). Though the House never reported out of committee any
wiretapping bill, it was retained in S. 917, a combination of S.
675 and S. 2050, whose provisions ultimately were enacted as Title
III. Despite the appearance and modification of the identification
requirements during the legislative process, however, no real
debate surrounded their adoption, and only the statements in S.Rep.
No. 1097,
supra, that they were designed to
responsibility, give any indication of their purpose in the overall
scheme of Title III. No role more significant than a reporting
function designed to establish on paper that one of the major
procedural protections of Title III had been properly accomplished
is apparent.
When it is clearly established, therefore, that authorization of
submission of a wiretap or electronic surveillance application has
been given by the Attorney General himself, but the application,
and, as a result, the interception order, incorrectly state that
approval has instead been given by a specially designated Assistant
Attorney General, the misidentification, by itself, will not render
interceptions conducted under the order "unlawful" within the
meaning of § 2518(10)(a)(i) or the disclosure of the contents of
intercepted communications, or derivative evidence, otherwise "in
violation of" Title III within the meaning of § 2515. Hence, the
suppression of the Chavez wiretap evidence on the basis
Page 416 U. S. 580
of the misidentification of Assistant Attorney General Wilson as
the authorizing official was in error. Though we deem this result
to be the correct one under the suppression provisions of Title
III, we also deem it appropriate to suggest hat strict adherence by
the Government to the provisions of Title III would nonetheless be
more in keeping with the responsibilities Congress has imposed upon
it when authority to engage in wiretapping or electronic
surveillance is sought.
The judgment of the Court of Appeals is affirmed in part,
reversed in part, and remanded for further proceedings consistent
with this opinion.
It is so ordered.
[
Footnote 1]
The relevant statutory provisions are set forth in the Appendix
to
United States v. Giordano, ante, p.
416 U. S.
534.
[
Footnote 2]
In other instances where the Attorney General had personally
authorized the application, but the application and order
erroneously recited approval by Assistant Attorney General Wilson,
suppression of wiretap evidence has been denied on the ground of
substantial compliance with Title III requirements.
United
States v. James, 161 U.S.App.D.C. 88, 98, 494 F.2d 1007, 1017
(1974) ("immaterial variance");
United States v. Pisacano,
459 F.2d 259, 264 n. 5 (CA2 1972) ("discrepancy did not
meaningfully subvert the congressional scheme");
United States
v. Becker, 461 F.2d 230, 235 (CA2 1972) ("harmless error");
United States v. Ceraso, 467 F.2d 647, 652 (CA3 1972)
("subsequent identification of the authorizing officer is
satisfactory");
United States v. Bobo, 477 F.2d 974, 985
(CA4 1973) ("sufficient compliance");
United States v.
Cox, 462 F.2d 1293, 1300 (CA8 1972) ("it is irrelevant that
the application and order recited the authorizing officer as Mr.
Wilson, rather than Mr. Mitchell").
See also United States v.
Roberts, 477 F.2d 57, 59 (CA7 1973), holding the authorization
improper because given by the Executive Assistant, not the Attorney
General, but suggesting that, with respect to the misidentification
of Assistant Attorney General Wilson, "we would not be inclined to
elevate form over substance to find a violation of 18 U.S.C. §
2518(1)(a) and (4)(d). . . ."
[
Footnote 3]
The record discloses that respondents also based their motions
to suppress the Chavez wiretap evidence on the failure of the
Government's affidavits in support of the wiretap application to
demonstrate a need for wiretapping as opposed to less intrusive
means of investigation, 18 U.S.C. § 2518(1)(c), to particularly
describe the communications sought to be intercepted, §
2518(1)(b)(iii), to allege facts sufficient to justify the
uncertainty of the termination date for the interception, §
2518(1)(d), or to adequately show probable cause to support the
order, § 2518(3); moreover, the sufficiency of the order's
directive to minimize the interception of innocent conversations
and compliance by the agents who conducted the wiretap with the
order of minimization, § 2518(5) were also challenged. R. 159-197.
None of these questions is before us now, as neither the District
Court nor the Court of Appeals passed on any of them.
[
Footnote 4]
The Government advises that, in the spring of 1972, it revised
the form memoranda by which the Attorney General had approved
applications for wiretapping or electronic surveillance authority,
and the form language in the letters sent to the applying
attorneys, which are appended to the applications filed in the
district courts, to accurately reflect that approval was obtained
from the Attorney General, rather than a specially designated
Assistant, unless the latter happens to be the case. Brief for
United States in
United States v. Giordano 9.
[
Footnote 5]
Respondents' attempt to analogize the facial insufficiency of a
search warrant supported by an affidavit submitted under a false
name of the affiant, a deficiency which has been held by some
courts to require suppression under Fed.Rule Crim.Proc. 41,
King v. United States, 282 F.2d 398 (CA4 1960), or under
the Fourth Amendment,
United States ex rel. Pugh v. Pate,
401 F.2d 6 (CA7 1968),
cert. denied, 394 U.S. 999 (1969),
to the asserted facial insufficiency of a wire interception order
which incorrectly identifies who authorized the application for the
order, must fail. Without passing on the soundness of these cases,
it must be recalled that the misidentification of the officer
authorizing a wiretap application is irrelevant to the issue of
probable cause, which is supported by the separate affidavits of
investigative officials.
See 18 U.S.C. §§ 2518(1) and (3).
Moreover, no basis is provided in Title III for challenging the
validity of the interception order depending on whether the
application was approved by the Attorney General, rather than a
specially designated Assistant.
[
Footnote 6]
Section 2519 provides in full
"§ 2519. Reports concerning intercepted wire or oral
communications."
"(1) Within thirty days after the expiration of an order (or
each extension thereof) entered under section 2518, or the denial
of an order approving an interception, the issuing or denying judge
shall report to the Administrative Office of the United States
Courts --"
"(a) the fact that an order or extension was applied for;"
"(b) the kind of order or extension applied for;"
"(c) the fact that the order or extension was granted as applied
for, was modified, or was denied;"
"(d) the period of interceptions authorized by the order, and
the number and duration of any extensions of the order;"
"(e) the offense specified in the order or application, or
extension of an order;"
"(f) the identity of the applying investigative or law
enforcement officer and agency making the application and the
person authorizing the application; and"
"(g) the nature of the facilities from which or the place where
communications were to be intercepted."
"(2) In January of each year, the Attorney General, an Assistant
Attorney General specially designated by the Attorney General, or
the principal prosecuting attorney of a State, or the principal
prosecuting attorney for any political subdivision of a State,
shall report to the Administrative Office of the United States
Courts --"
"(a) the information required by paragraphs (a) through (g) of
subjection (1) of this section with respect to each application for
an order or extension made during the preceding calendar year;"
"(b) a general description of the interceptions made under such
order or extension, including (i) the approximate nature and
frequency of incriminating communications intercepted, (ii) the
approximate nature and frequency of other communications
intercepted, (iii) the approximate number of persons whose
communications were intercepted, and (iv) the approximate nature,
amount, and cost of the manpower and other resources used in the
interceptions;"
"(c) the number of arrests resulting from interceptions made
under such order or extension, and the offenses for which arrests
were made;"
"(d) the number of trials resulting from such
interceptions;"
"(e) the number of motions to suppress made with respect to such
interceptions, and the number granted or denied;"
"(f) the number of convictions resulting from such interceptions
and the offenses for which the convictions were obtained and a
general assessment of the importance of the interceptions; and"
"(g) the information required by paragraphs (b) through (f) of
this subsection with respect to orders or extensions obtained in a
preceding calendar year."
"(3) In April of each year, the Director of the Administrative
Office of the United States Courts shall transmit to the Congress a
full and complete report concerning the number of applications for
orders authorizing or approving the interception of wire or oral
communications and the number of orders and extensions granted or
denied during the preceding calendar year. Such reports shall
include a summary and analysis of the data required to be filed
with the Administrative Office by subsections (1) and (2) of this
section. The Director of the Administrative Office of the United
States Courts is authorized to issue binding regulations dealing
with the content and form of the reports required to be filed by
subsections (1) and (2) of this section."
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
STEWART, and MR. JUSTICE MARSHALL join, concurring in part and
dissenting in part in No. 72-1319,
United States v.
Chavez, and concurring in No. 72-1057,
United States v.
Giordano, ante, p.
416 U. S. 505.
The Court deals with two different Justice Department violations
of Title III of the Omnibus Crime Control and Safe Streets Act of
1968, which imposes express limitations on the use of electronic
surveillance. In
United States v. Giordano, the Court
correctly finds that the violation of 18 U.S.C. § 2516(1) is a
violation of a statutory requirement which
"directly and substantially implement[s] the congressional
intention to limit the use of intercept procedures to those
situations clearly calling for the employment of this extraordinary
investigative device."
The Court also properly finds that a violation of such a
statutory requirement mandates suppression of the evidence seized
by the unlawful interception. I join the opinion of the Court in
Giordano. The same violation of § 2516(1) is also involved
in the Fernandez wiretap in
United States v. Chavez, and I
therefore concur in the Court's suppression of the
Page 416 U. S. 581
evidence seized in that wiretap. In
Chavez, however,
the Court finds that suppression is not warranted for the
violations of 18 U.S.C. §§ 2518(1)(a) and 2518(4)(d) which the
Court admits occurred in the Chavez wiretap itself. I dissent from
this conclusion, hereinafter referred to as the holding of
Chavez.
I
Title III permits electronic surveillance to be employed only
pursuant to a court order. It requires,
inter alia, that a
federal trial attorney desiring to apply to the District Court for
such a wiretap order must first secure authorization from one of a
group of specified officials in the Justice Department.
Giordano represents a class of cases in which
authorization for electronic surveillance was given by Sol
Lindenbaum, the Executive Assistant to Attorney General John
Mitchell, in violation of the "authorization requirement" of
2516(1) of Title III. This section provides that a wiretap order
may be applied for only after authorization by "[t]he Attorney
General, or any Assistant Attorney General specially designated by
the Attorney General."
Chavez, on the other hand,
represents a class of cases where the Justice Department violated
the "identification requirement" of § 2518(1)(a) of Title III,
which requires that each application made to the District Court for
a wiretap order "shall include . . . the identity of . . . the
officer authorizing the application." Because the District Courts
in this class of cases were supplied with misinformation as to the
identity of the person who authorized the applications made to
them, the orders they entered approving the use of electronic
surveillance violated § 2518(4)(d) of Title III, which provides
that
such orders "shall specify . . . the identity
Page 416 U. S. 582
of . . . the person authorizing the application."
(Emphasis added.)
In the Justice Department between 1969 and 1972, a request from
a federal trial attorney for authorization to apply for a wiretap
order was reviewed in the Criminal Division before being sent to
Attorney General Mitchell. According to the Solicitor General, in
Chavez, Attorney General Mitchell made the operative decision to
authorize the wiretap application and signified this by sending a
memorandum to Assistant Attorney General Will Wilson directing
Wilson to authorize the trial attorney to submit the application to
the District Court. The memorandum, [
Footnote 2/1] the Solicitor General admits, does not
make clear that the operative decision was made in the Attorney
General's Office; rather, it indicate that Wilson himself was
designated to review and authorize the application.
At this point, a letter of authorization was sent to the trial
attorney, which clearly identified Assistant Attorney General
Wilson, and not Mitchell, as the person who had made the operative
decision to authorize the wiretap. [
Footnote 2/2] Wilson, however, neither saw nor
authorized
Page 416 U. S. 583
the Chavez wiretap application or any others; his signature was
affixed to the authorization letters by a Deputy Assistant Attorney
General, either Harold P. Shapiro or Henry E. Petersen. [
Footnote 2/3]
When the trial attorney applied for a wiretap order in the
District Court, he attached the letter of authorization purportedly
signed by Wilson, and naturally misidentified Wilson as the person
who had authorized the application to be made, [
Footnote 2/4] in violation of the
identification
Page 416 U. S. 584
requirements of § 218(1)(a). As a result, the District Court's
order identified Wilson, and not Mitchell, as the Justice
Department official who had authorized the trial attorney to apply
for the Chavez wiretap order, [
Footnote
2/5] in violation of the identification requirement of §
2518(4)(d).
In
Chavez, Mitchell first acknowledged responsibility
for authorizing the wiretap application in an affidavit filed with
the District Court only after respondents had made a motion to
suppress the evidence in the tap. Similar affidavits stating that
Mitchell had authorized the application, rather than Wilson, were
filed by Lindenbaum and Petersen. The courts below, on the strength
of these affidavits, have held that Mitchell did, in fact,
authorize the application to be made. Both, however, ordered the
evidence which was seized by the surveillance to be suppressed,
since the application misidentified Wilson as the responsible
official. This Court reverses the Court of Appeals.
II
Deciding a question not reached in
Giordano, the Court
in
Chavez holds that suppression is not dictated when
there has been a violation of a provision of Title III which does
not, in the view of the courts, "directly and substantially
implement the congressional intention to limit the use of intercept
procedures" to cases clearly calling for electronic surveillance. I
cannot agree that Title III, fairly read, authorizes the courts to
pick and choose among various statutory provisions, suppressing
Page 416 U. S. 585
evidence only when they determine that a provision is
"substantive," "central," or "directly and substantially" related
to the congressional scheme.
Section 2515 of Title III unambiguously provides that no
evidence derived from any intercepted communication may be received
"in any trial . . . in or before any court . . . if the disclosure
of that information would be in violation of this chapter." The
Court acknowledges this provision in
Chavez, ante, at
416 U. S. 575,
but disregards two sections of Title III explicitly dealing with
disclosure in determining when disclosure is, in fact, "in
violation of" Title III. Section 2511(1), which provides criminal
penalties for willful violations of Title III, prohibits in §
2511(1)(c) knowing disclosure of communications intercepted in
violation of subsection (1), and the subsection prohibits
interception "[e]xcept as otherwise specifically provided in this
chapter." § 2511(1)(a). Section 2517(3) authorizes the disclosure
in a criminal proceeding of information received "by any means
authorized by this chapter" or of evidence derived from a
communication "intercepted in accordance with the provisions of
this chapter." The statute does not distinguish between the various
provisions of the Title, and it seems evident that disclosure is
"in violation of" Title III when there has not been compliance with
any of its requirements.
The Court fixes on § 2518(10)(a), which defines the class of
persons who may move to suppress the admission of evidence. This
section provides that any aggrieved person may move to suppress
evidence on the grounds that
"(i) the communication was unlawfully intercepted;"
"(ii) the order of authorization or approval under which it was
intercepted is insufficient on its face; or "
Page 416 U. S. 586
"(iii) the interception was not made in conformity with the
order of authorization or approval. Since paragraphs (ii) and (iii)
reach some statutory violations, reasons the Court, paragraph (i)
cannot reach all statutory violations or else paragraphs (ii) and
(iii) would be 'drained of all meaning.'"
The choice seems to be between attributing to Congress a degree
of excessive cautiousness which led to some redundancy in drafting
the protective provisions of § 2518(10)(a), or foolishness which
led Congress to enact statutory provisions for law enforcement
officials to scurry about satisfying when it did not consider the
provisions significant enough to enforce by suppression. In view of
the express prohibition by § 2515 of disclosure of information "in
violation of" the chapter, I would opt for the conclusion that
Congress was excessively cautious, and that "unlawfully
intercepted" means what it says.
Congress could easily have given the judiciary discretion to
apply the suppression remedy only for violations of "central"
statutory provisions by using language such as "unlawfully
intercepted in violation of important requirements of this chapter"
in § 2518(10)(a). But no such limitation appears. Further, the
legislative history of Title III emphasizes Congress' intent to
enforce every provision of the Title with the remedy provided in §§
2515 and 2518(10)(a). The Senate Report which accompanied Title III
to the Congress states that "Section 2515 . . . imposes an
evidentiary sanction to compel compliance with the other
prohibitions of the chapter," and that § 2518(10)(a), together with
§ 2515, "applies to suppress evidence directly . . . or indirectly
obtained in violation of the chapter." S.Rep. No. 1097, 90th Cong.,
2d Sess., 96 (1968).
Again, no distinction supports the conclusion that Congress
considered any provision of Title III more
Page 416 U. S. 587
important than any other in the applications of the suppression
remedy. Congress at no point indicated that it intended to give the
courts the discretion to distinguish various provisions of Title
III, never suppressing evidence for violations of some -- such as
§§ 2518(1)(a) and (4)(d) -- deemed not "directly and substantially"
related to the congressional intent to limit the use of electronic
surveillance. No matter how egregious or willful the violation of
these provisions, it seems that suppression will not follow, and
the Court opens the door to the creation of other non-"central"
statutory requirements. This breadth of discretion is not part of
the congressional scheme, and the Court oversteps its judicial role
when it arrogates such discretion to itself.
III
Moreover, even under the test the Court defines in
Chavez, that violations of only those statutory provisions
"directly and substantially" limiting the use of electronic
surveillance will warrant suppression, the violation of the
identification requirements of §§ 2518(1)(a) and (4)(d) mandates
suppression in
Chavez. For the requirement of § 2518(1)(a)
that the application for a wiretap "shall include . . . the
identity of . . . the officer authorizing the application,"
together with that of § 2518(4)(d) that the wiretap order contain
the same information, significantly implements the congressional
intention to limit the use of electronic surveillance
procedures.
In support of its conclusion that suppression is not mandated by
the §§ 2518(1)(a) and 2518(4)(d) violations in
Chavez, the
Court states that, while Congress expressed the intent that these
provisions "fix responsibility" on the person who authorized the
employment of electronic surveillance,
"[w]here it is established that responsibility for approval of
the application is fixed
Page 416 U. S. 588
in the Attorney General, however, compliance with the screening
requirements of Title III [§ 2516] is assured, and there is no
justification for suppression."
Ante at
416 U. S. 572.
To the Court, the provisions
"[do] not establish a substantive role to be played in the
regulatory system. . . . No role more significant than a reporting
function designed to establish on paper that one of the major
procedural protections of Title III [the authorization requirement
of 2516] had been properly accomplished is apparent."
Ante at
416 U. S. 578,
416 U. S.
579.
The Court reduces the statement of Congress that the
identification provisions were created to "fix responsibility" for
a wiretap authorization to meaning only that the provisions were
drafted to assure the courts that there had been compliance with
the authorization requirement of § 2516. And the Court finds it
satisfactory that this responsibility is established by an
ex
post facto affidavit of the Attorney General, stating that he,
in fact, authorized the Chavez surveillance.
It seems to me a complete misreading of Congress' attempt to
"fix responsibility" in the application and order to reach these
conclusions. Sections 2518(1)(a) and 2518(4)(d) are not part of the
detailed and stringent guidelines of Title III through legislative
inadvertence. They were not present in early proposals to regulate
wiretapping, but were carefully inserted in later proposals,
culminating in the draft which became Title III. A 1961 proposal to
allow wiretapping under regulated conditions did not contain any
identification requirement, although it contained provisions
designating those who could authorize surveillance. [
Footnote 2/6] S. 675, introduced in the
90th Congress
Page 416 U. S. 589
by Senator McClellan on January 25, 1967, 113 Cong.Rec. 1491,
did not require either the application or the court order to
identify the person who authorized the surveillance application.
[
Footnote 2/7] S. 2050, introduced
five months later by Senator Hruska, 113 Cong.Rec. 18007, expressly
required that the application to the court set forth "the identity
of the person who authorized the application," but did not require
the court order to contain this information. [
Footnote 2/8] H.R. 13482, introduced in the House on
October 12, 1967, 113 Cong.Rec. 28792, not only required that the
application identify the person authorizing it, but also that the
court order contain this information. Six months later, on April
29, 1968, the Senate Judiciary Committee reported S. 917, whose
provisions ultimately were enacted as Title III, accompanying the
bill with an extended explanation of every provision. [
Footnote 2/9] Though it noted that Title
III is "essentially a combination" of S. 675 and S. 2050, [
Footnote 2/10] the Judiciary Committee
went beyond either of those bills as to the identification
requirements, mandating that both the application and the order
identify the person who authorized the application.
In its discussion of the authorization requirement of § 2516,
the Senate Report states:
"This provision centralizes in a publicly responsible official
subject to the political process the formulation of law enforcement
policy on the use of electronic surveillance techniques.
Centralization will
Page 416 U. S. 590
avoid the possibility that divergent practices might develop.
Should abuses occur, the lines of responsibility lead to an
identifiable person. This provision, in itself, should go a long
way toward guaranteeing that no abuses will happen."
S.Rep. No. 1097, 90th Cong., 2d Sess., 97 (1968). But this alone
was not sufficient. The Report continues:
"The application must be made to a Federal judge of competent
jurisdiction, as defined in section 2510(9), discussed above. The
application must conform to section 2618, discussed below."
Ibid. (Emphasis added.) The Committee's discussion of §
2518 states:
"Section 2518 of the new chapter sets out in detail the
procedure to be followed in the interception of wire or oral
communications."
"
* * * *"
"Subparagraph [2518(1)(a)]
requires the identity of the
person who makes, and the person who authorized, the application to
be set out.
This fixes responsibility."
"
* * * "
"Subparagraph [2518(4)(d)] requires that the order note the
agency authorized to make the interception and the person who
authorized the application,
so that responsibility will be
fixed."
Id. at 100, 101, 103. (Emphasis added.) The crucial
concept is Congress' expression of intention that §§ 2518(1)(a) and
(4)(d) should be complied with, so that the application and order
would fix responsibility.
Clearly, no such responsibility was fixed on Mitchell,
Page 416 U. S. 591
the authorizing official, in
Chavez. As the Court of
Appeals noted, 478 F.2d 512, 515, 516, there
"was a misrepresentation, in circumstantial and carefully
phrased detail, all pointing to Wilson as the officer authorizing
the application, when, in fact, he did no such thing."
". . . The Wilson letter and the Mitchell memorandum . . .
create the illusion of compliance with the Act. Without Mitchell's
affidavit, the lines of responsibility lead to Wilson, not to
Mitchell."
Yet Wilson never saw the application for which Mitchell now
accepts responsibility. Before the affidavits submitted to the
District Court in response to the motion to suppress, about one
year after the application was initially authorized, responsibility
pointed directly at Wilson, and no document implicated
Mitchell.
It is simply not enough that Mitchell's responsibility is
established only after a prosecution is under way and a motion to
suppress filed. After-the-fact acceptance for the Chavez
surveillance was made at no cost. The surveillance was productive,
and was directed against an alleged drug trafficker, a pariah of
society. Accepting responsibility at this point, further, helped
Mitchell and the Justice Department avoid the acute embarrassment
of losing this prosecution. But this was not the scheme created by
the Congress. By creating the identification provisions, which
required the authorizing official to be made known at the time of
an application, it established a mechanism by which a person's
responsibility was to be acknowledged immediately, not a device by
which the identity of the person authorizing the application would
remain hidden until it was discovered that an instance of
electronic surveillance had been productive and not offensive to
public sensibilities.
Page 416 U. S. 592
Immediate acknowledgment of responsibility for authorizing
electronic surveillance is not an idle gesture. It lessens or
eliminates the ability of officials to later disavow their
responsibility for surveillance. By adding the identification
provisions of § 2518, Congress took a step toward stripping from
responsible officials the ability to choose after the fact whether
to accept or deny that responsibility by coming forward and filing
an affidavit. "Fixing" of responsibility in the application and
order can have no other meaning; it simply does not comprehend a
situation where responsibility is concealed or unsettled. Had
Congress been content with compliance with § 2516 being proved and
responsibility for surveillance being established by later
testimony and affidavits, it could easily have left the legislation
in its early form without adding the express requirements of §§
2518(1)(a) and (4)(d) to the Act. [
Footnote 2/11]
The Court's treatment of the identification requirements
trivializes Congress' efforts in adding them to Title III. In
Giordano, the Court relies on Congress' clearly expressed
desire that an official, responsible to the political process,
should make the decision authorizing electronic surveillance and
bear the scrutiny of Congress and the public for that decision. As
noted, the Senate Report which accompanied Title III to Congress
stated that § 2516 "centralizes in a publicly responsible official
subject to the political process" the formulation of electronic
surveillance policy so that,
"[s]hould abuses occur, the lines of responsibility lead to an
identifiable person. This provision, in itself, should go a long
way toward guaranteeing
Page 416 U. S. 593
that no abuses will happen."
S.Rep. No. 1097, 90th Cong., 2d Sess., 97 (1968). Similarly,
Senator Long, in support of the bill, read from a report which
stated:
"We agree that responsibility should be focused on those public
officials who will be principally accountable to the courts and the
public for their actions. [
Footnote
2/12]"
Speaking to a related provision requiring that politically
responsible state prosecuting officials authorize state
applications, Professor Blakey of Notre Dame, instrumental in the
drafting of Title III, stated:
"Now the reason [for this requirement] is that, unless we
involve someone in the process of using this equipment who is
politically responsible, that is, someone who must return to the
people periodically and be reelected, it seems to me we miss a
significant check on possible abuse. As a practical matter, if
there is police abuse, the remedies that we can take against them
are limited. If we involve the responsible judgment of a political
official in the use of this equipment, and it is then abused, the
people have a very quick and effective remedy at the next election.
[
Footnote 2/13]"
But it is clear that this personal responsibility and political
accountability, relied on by Congress to check the reckless use of
electronic surveillance, is rendered a mere chimera when the
official actually authorizing a wiretap application is not
identified until years after the
Page 416 U. S. 594
tap has occurred, when he might already be out of office, when
the usefulness of the tap is already established, when it is clear
that the surveillance was not abusive, and then only through
voluntary admissions or the sifting of potentially contradictory
affidavits. Responsibility is hardly "focused," and the "lines of
responsibility" are gossamer, at best. This is why Congress added
the demand that responsibility be immediately
fixed. The
procedures which the Court sanctions in
Chavez stretch the
unequivocally expressed desire of Congress to
fix
responsibility in the application and order well beyond the
breaking point.
In eviscerating Congress' intent to fix responsibility in the
application and order, the Court destroys a significant deterrent
to reckless or needless electronic surveillance. It allows the
official authorizing a wiretap to remain out of the harsh light of
public scrutiny at the crucial beginning of the wiretap process,
only to emerge later when he chooses to identify himself. Knowledge
that personal responsibility would be immediately focused and
immutably fixed, whatever the outcome of surveillance, be it
profitable or profligate, successful or embarrassing, forces an
official to be circumspect in initially authorizing an electronic
invasion of privacy. This is why Title III requires more than a
judicial determination of probable cause; it also requires an
accountable political official to exercise political judgment, and
it requires that the political official be immediately identified,
and his responsibility fixed, when an application is filed. The
identification procedures, by fixing responsibility, obviously
serve to "limit the use of intercept procedures to those situations
clearly calling for the employment of this extraordinary
investigative device," thereby requiring suppression even under the
test the Court adopts in
Chavez.
Page 416 U. S. 595
The Court mentions in passing the reporting requirements of
Title III, noting the information furnished the judge pursuant to §
2518(1)(a) is useful in making the reports required of him under §
2519. This section requires the judge to report,
inter
alia, the name of the party who authorized each wiretap
application made to him to the Administrative Office of the United
States Courts within 30 days after surveillance has been completed.
§ 2519(1)(f). At the same time, § 2519(2) requires the authorizing
prosecuting officials designated in § 2516 to file a report in
January of each year, which also must include the name of the
person who authorized applications made during the previous
calendar year. In reliance on this information, the Administrative
Office is to report such information to the Congress for public
scrutiny. § 2519(3). Like the applications and wiretap orders
themselves, this report is to include the names of those persons
responsible for authorizing electronic surveillance.
In the set of cases represented by
Chavez, of course,
the person actually authorizing the applications, Mitchell, was not
made known to the courts which approved them, and so the reports
filed with the Administrative Office by the judiciary did not
identify him as the responsible official. The potential for public
accountability through this channel was foreclosed by the
misinformation given the courts. While the report filed by the
office of the Attorney General in January 1970 did state that the
1969 applications filed in Wilson's name had been personally
approved by Mitchell, the Solicitor General informs us that the
reports filed by the Attorney General regarding instances of
electronic surveillance for 1970 and after, including the Giordano
wiretap (1970) and the Chavez tap (1971), did not acknowledge
that
Page 416 U. S. 596
Mitchell had personally authorized the surveillance attributed
to his subordinates. [
Footnote
2/14] The failure of the Attorney General's office to document
the actual personal responsibility of Mitchell for surveillance
authorizations occurred as those authorizations proliferated: there
were only 34 instances of federal surveillance reported under Title
III for 1969, but that number rose to 183 in 1970 and 238 in 1971.
[
Footnote 2/15]
Ex post
facto acknowledgment of responsibility by Mitchell in the annual
reports filed pursuant to § 2519(2) could not, of course, cure the
violation of the express congressional mandate of § 2518(1)(a) any
more than did Mitchell's filing of an affidavit. Nevertheless, not
even these reports for years after 1969 provided documentation that
Mitchell was the Justice Department official actually responsible
for authorizing electronic surveillance. While Congress demanded
the openness of political accountability, Justice Department
documents drew a veil of secrecy, and no personal responsibility
was attributed in any documents to Mitchell, the person actually
responsible for authorizing the electronic surveillance.
V
As the Court recognized in
Gelbard v. United States,
408 U. S. 41,
408 U. S. 48,
the protection of privacy was an overriding concern of Congress
when it established the requirements of Title III in 1968:
"The need for comprehensive, fair and effective reform setting
uniform standards is obvious. New
Page 416 U. S. 597
protections for privacy must be enacted."
S.Rep. No. 1097, 90th Cong., 2d Sess., 69. Electronic
surveillance was a serious political issue, and these detailed and
comprehensive requirements are not portions of a hastily conceived
piece of legislation. As noted above, electronic surveillance
legislation was introduced long before 1968, and the provisions of
Title III are the culmination of a long evolutionary process. The
Title was accompanied by an exhaustive and studied report in which
the Senate Judiciary Committee offered an explanation and
justification for each clause of the bill. I cannot believe that
Congress perversely required law enforcement officials to jump
through statutory hoops it considered unnecessary to the goal of
protecting individual privacy from unwarranted electronic
invasions.
On the contrary, the history of Title III reflects a desire that
its provisions be strictly construed. Senator McClellan, sponsor of
S. 675, one of the bases for Title III, and chairman of the
committee which reported Title III to Congress, stated during
hearings on his bill:
"I would not want any loose administration of this law."
"
* * * *"
"But [I would] have it very strictly observed. It is not to
become a catchall for promiscuous use. I want to see this law
strictly observed with the courts adhering to the spirit and intent
of it in granting the orders."
"
* * * *"
"I think it ought to be tight, very definitely as free from
loopholes as it can possibly be made. . . . [
Footnote 2/16]
Page 416 U. S. 598
Subsequently, McClellan's committee closed yet another loophole
in the law by inserting the identification requirements of Title
III, attempting thereby to fix responsibility at the time of the
application for a wiretap order, requirements which this Court now
nullifies."
Mr. Justice Holmes observed in dissent 70 years ago:
"Great cases, like hard cases, make bad law. For great cases are
called great not by reason of their real importance in shaping the
law of the future, but because of some accident of immediate
overwhelming interest which appeals to the feelings and distorts
the judgment. These immediate interests exercise a kind of
hydraulic pressure which makes what previously was clear seem
doubtful, and before which even well settled principles of law will
bend."
Northern Securities Co. v. United States, 193 U.
S. 197,
193 U. S.
400-401.
Page 416 U. S. 599
The Solicitor General reminds us that substantial effort on the
part of the Organized Crime Section of the Criminal Division of the
Department of Justice is implicated, for the violations of Title
III reflected in these two cases are not isolated occurrences. The
failure of Attorney General Mitchell properly to authorize
applications involves 60 cases and 626 defendants. The failure of
surveillance applications to fix responsibility on Mitchell, when
he did, in fact, authorize the applications, involves an additional
99 cases and 807 defendants. Yet the magnitude of the effect of
suppression of unlawfully obtained evidence for these violations of
Title III does not vitiate our duty to enforce the congressional
scheme as written. The failure of a prosecution in a particular
case pales in comparison with the duty of this Court to nourish and
enhance respect for the evenhanded application of the law. I
accordingly dissent in part in
Chavez.
[
Footnote 2/1]
The form memorandum employed by Mitchell stated in part:
"This is with regard to your recommendation that authorization
be given to [the particular trial attorney] to make application for
an Order of the Court under Title 18, United States Code, Section
2518, permitting the interception of wire communications for a
[particular] period to and from telephone number [the listed
telephone numbers of the particular criminal investigation.] . . .
"
"Pursuant to the powers conferred on me by Section 2516 of Title
18, United States Code,
you are hereby specially designated to
exercise those powers for the purpose of authorizing [the
particular trial attorney] to make the above-described
application."
(Emphasis added.)
[
Footnote 2/2]
The letter sent over Wilson's signature in
Chavez
read:
"This is with regard to your request for authorization to make
application pursuant to the provisions of Section 2518 of Title 18,
United States Code, for an Order of the Court authorizing the
Bureau of Narcotics and Dangerous Drugs and the Bureau of Customs
[to intercept wire communications at the particular number
involved]. . . ."
"
I have reviewed your request and the facts and
circumstances detailed therein and have determined that there
exists probable cause to believe that [named individuals were
committing certain offenses]. . . .
I have further
determined that there exists probable cause to believe that
the above persons make use of the described facility in connection
with those offenses, that wire communications concerning the
offenses will be intercepted, and that normal investigative
procedures reasonably appear to be unlikely to succeed if
tried."
"Accordingly,
you are hereby authorized under the power
specially delegated to me in this proceeding by the Attorney
General of the United States, the Honorable John N. Mitchell,
pursuant to the power conferred on him by Section 2516 of Title 18,
United States Code, to make application to a judge of competent
jurisdiction for an Order of the Court pursuant to Section 2518 of
Title 18, United States Code [to intercept the described wire
communications]. . . ."
(Emphasis added.)
[
Footnote 2/3]
In
Chavez, the letter was signed by Petersen.
[
Footnote 2/4]
The application stated:
"[T]he Honorable John N. Mitchell, has specially designated in
the proceeding the Assistant Attorney General for the Criminal
Division of the United States Department of Justice, The Honorable
Will Wilson, to authorize affiant to make this application for an
Order authorizing the interception of wire communications. This
letter of authorization signed by the Assistant Attorney General is
attached to this application as Exhibit A."
[
Footnote 2/5]
The order read in part:
"Special Agents . . . are authorized, pursuant to the
application authorized by the Assistant Attorney General for the
Criminal Division of the United States Department of Justice, the
Honorable Will Wilson, [to intercept wire communications]. . .
."
[
Footnote 2/6]
S. 1495, 87th Cong., 1st Sess., § 4(b), printed in Hearings on
Wiretapping and Eavesdropping Legislation before the Subcommittee
on Constitutional Rights of the Senate Committee on the Judiciary,
87th Cong., 1st Sess., 4, 5 (1961).
[
Footnote 2/7]
Printed in Hearings on Controlling Crime Through More Effective
Law Enforcement before the Subcommittee on Criminal Laws and
Procedures of the Senate Committee on the Judiciary, 90th Cong.,
1st Sess., 75 (1967).
[
Footnote 2/8]
Printed in Hearings,
supra, 416
U.S. 562fn2/7|>n. 7, at 1006.
[
Footnote 2/9]
S.Rep. No. 1097, 90th Cong., 2d Sess. (1968).
[
Footnote 2/10]
Id. at 66.
[
Footnote 2/11]
The Court in
Chavez finds some guidance in the fact
that "no real debate surrounded" the adoption of the identification
requirements. This is not surprising, in that the provisions were
added to wiretapping legislation in committee and justified in the
Judiciary Committee's report.
[
Footnote 2/12]
114 Cong.Rec. 14474. The Report was by the Association of the
Bar of the City of New York, Committee on Federal Legislation,
Committee on Civil Rights, entitled "Proposed Legislation on
Wiretapping and Eavesdropping after
Berger v. New York and
Katz v. United States."
[
Footnote 2/13]
Hearings on Anti-Crime Program before Subcommittee No. 5 of the
House Committee on the Judiciary, 90th Cong., 1st Sess., 1380
(1967).
[
Footnote 2/14]
The Administrative Office nonetheless repeated the statement
made for 1969 that Mitchell had "personally" authorized the
applications.
[
Footnote 2/15]
See Administrative Office of United States Courts,
Reports on Applications for Orders Authorizing or Approving the
Interception of Wire or Oral Communications, 1969, 1970, 1971.
[
Footnote 2/16]
Hearings on Controlling Crime Through More Effective Law
Enforcement before the Subcommittee on Criminal Laws and Procedures
of the Senate Committee on the Judiciary, 90th Cong., 1st Sess.,
508, 869. In addition, in reporting to the Senate in 1969 on the
operation of Title III during its first year, Senator McClellan
stated:
"I do however, want to admonish every law enforcement officer,
prosecutor, and judge involved in this area that the only way this
legislation will be effective in combating crime is by strict
adherence to the standards it contains."
"
* * * *"
". . . This is an invaluable and powerful tool that must not be
subjected to abuse. Those who violate the standards can and must
either be punished, and, if they cannot learn to follow the law
,they must face loss of this law enforcement tool. . . ."
"
* * * *"
"Mr. President, my purpose in making these remarks has been to
help assure that this legislation will be, in fact, followed to the
strictest letter of the law -- both bringing criminals to book and
protecting citizens' privacy. That is the only way in which it can
be utilized as an effective tool in reducing crime. . . . Let us
make sure that none of those who may be convicted can ask for a
reversal because the law was not strictly followed."
115 Cong.Rec. 23241-23242.