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,
416 U.S. 562, and
concurring in No. 72-1057, United States v. Giordano,
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.
580 , 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.
580 , 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,1 the Solicitor General admits,
does not make clear that the operative decision was made in the
Attorney General's Office; rather, it indicates 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] Wilson, however, neither saw nor
authorized
Page 416 U.S.
580 , 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 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,4 in violation of the
identification
Page 416 U.S.
580 , 584
requirement of 2518(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,5 in violation of the identification
requirement of 2518(4)(d).
In Chavez, Mitchell first acknowledged responsibility for
authorizing the wire-tap 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.
580 , 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, 416 U.S., at 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.' 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.
580 , 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) U.S.Code Cong. & Admin.News, pp. 2112,
2184, 2185.
Again, no distinction supports the conclusion that Congress
considered any provision of Title III more
Page 416 U.S.
580 , 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.
580 , 588
in the Attorney General, however, compliance with the screening
requirements of Title III ( 2516) is assured, and there is no
justification for suppression.' Supra, at 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.'
Supra, at 578, 579, 1858.
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 6] S. 675, introduced in the 90th
Con-
Page 416 U.S.
580 , 589
gress 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 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. 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 9] Though it noted that Title III is 'essentially
a combination' of S. 675 and S. 2050,10 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.
580 , 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); 1968 U.S.Code Cong. &
Admin.News, p. 2185.
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
2518, 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.
580 , 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.
580 , 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 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 decisions 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 guar-
Page 416 U.S.
580 , 593
anteeing that no abuses will happen.' S.Rep.No.1097, 90th Cong.,
2d Sess., 97 (1968), U.S.Code Cong. & Admin.News, p. 2185.
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.'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.'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.
580 , 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.
580 , 595
IV
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.
580 , 596
Mitchell had personally authorized the surveillance attributed
to his subordinates. [
Footnote
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 228 in 1971.
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, 48, 2361, 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.
580 , 597
protections for privacy must be enacted.' S.Rep.No.1097, 90th
Cong., 2d Sess., 69, 1968 U.S.Code Cong. & Admin.News, p.
2156.
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 . .
..'16
Page 416 U.S.
580 , 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, 400-401, 468.
Page 416 U.S.
580 , 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.
Footnotes
Footnote 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 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 3 In Chavez, the
letter was signed by Petersen.
Footnote 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 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 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 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 8 Printed in
Hearings, supra, n. 7, at 1006.
Footnote 9 S.Rep.No.1097,
90th Cong., 2d Sess. (1968), U.S.Code Cong. and Admin.News, p.
2112.
Footnote 10 Id., at
66.
Footnote 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 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 13 Hearings on
Anti-Crime Program before Subcommittee No. 5 of the House Committee
on the Judiciary, 90th Cong., 1st Sess., 1380 (1967).
Footnote 14 The
Administrative Office, nonetheless, repeated the statement made for
1969 that Mitchell had 'personally' authorized the
applications.
Footnote 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 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.