# United States v. United States District Court

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## Concurring Opinions

    Douglas
    White
Supreme Court of the United States
407 U.S. 297
United States v. United States District Court for the Eastern District of Michigan et al. (Plamondon et al., Real Parties in Interest)
Certiorari to the United States Court of Appeals for the Sixth Circuit
No. 70-153. Argued: February 24, 1972 --- Decided: June 19, 1972
The United States charged three defendants with conspiring to destroy, and one of them with destroying, Government property. In response to the defendants' pretrial motion for disclosure of electronic surveillance information, the Government filed an affidavit of the Attorney General stating that he had approved the wiretaps for the purpose of "gather[ing] intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government." On the basis of the affidavit and surveillance logs (filed in a sealed exhibit), the Government claimed that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security. The District Court, holding the surveillances violative of the Fourth Amendment, issued an order for disclosure of the overheard conversations, which the Court of Appeals upheld. Title III of the Omnibus Crime Control and Safe Streets Act, which authorizes court-approved electronic surveillance for specified crimes, contains a provision in 18 U.S.C. § 2511 (3) that nothing in that law limits the President's constitutional power to protect against the overthrow of the Government or against "any other clear and present danger to the structure or existence of the Government." The Government relies on § 2511 (3) in support of its contention that "in excepting national security surveillances from the Act's warrant requirement, Congress recognized the President's authority to conduct such surveillances without prior judicial approval."
Held:
    1. Section 2511 (3) is merely a disclaimer of congressional intent to define presidential powers in matters affecting national security, and is not a grant of authority to conduct warrantless national security surveillances. Pp. 301-308.
    2. The Fourth Amendment (which shields private speech from unreasonable surveillance) requires prior judicial approval for the type of domestic security surveillance involved in this case. Pp. 314-321; 323-324.
       (a) The Government's duty to safeguard domestic security must be weighed against the potential danger that unreasonable surveillances pose to individual privacy and free expression. Pp. 314-315.
       (b) The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate. Pp. 316-318.
       (c) Resort to appropriate warrant procedure would not frustrate the legitimate purposes of domestic security searches. Pp. 318-321.
444 F. 2d 651, affirmed.
POWELL, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, STEWART, and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 324. BURGER, C. J., concurred in the result. WHITE, J., filed an opinion concurring in the judgment, post, p. 335. REHNQUIST, J., took no part in the consideration or decision of the case.
Assistant Attorney General Mardian argued the cause for the United States. With him on the brief were Solicitor General Griswold and Robert L. Keuch.
William T. Gossett argued the cause for respondents the United States District Court for the Eastern District of Michigan, et al. With him on the brief was Abraham D. Sofaer. Arthur Kinoy argued the cause for respondents Sinclair et al. With him on the brief were William J. Bender and William Kunstler.
Briefs of amici curiae urging affirmance were filed by Stephen I. Schlossberg for the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), and by Benjamin Dreyfus for the Black Panther Party et al.
Briefs of amici curiae were filed by Herman Schwartz, Melvin L. Wulf, and Erwin B. Ellmann for the American Civil Liberties Union et al.; by John Ligtenberg for the American Federation of Teachers; and by the American Friends Service Committee.