Earl Warren: Number 133, Rob B. Kolod et. al, petitioners versus United States. Mr. Solicitor General.
Erwin N. Griswold: May it please the Court. This case began as an indictment in the District Court for Colorado for conspiracy to transmit in interstate commerce communications containing threats designed to injure one, Robert Sunshine. There were then four defendants; one was acquitted and of course is not here. The other three defendants appealed to the United States Court of Appeals for the Tenth Circuit. At the trial, the defendant Kolod sought to introduce evidence about an illegal surveillance which is the fancy way to call it, bugging is the other way it's called at the Desert Inn in Las Vegas, Nevada. He offered this in rebuttal in order he said to disprove or offset evidence offered by the Government. The trial court examined the materials in camera and held that they were not relevant and that the evidence could not be introduced. The three defendants who were convicted appealed to the Tenth Circuit Court of Appeals and pending the appeal, the Government disclosed that it had additional files relating to conversations overheard at the Desert Inn. The case was remanded to the District Court to examine this material in camera. The Court found nothing admissible in the additional material. Thereafter, the Tenth Circuit affirmed the convictions. A petition for certiorari was filed here and was denied in October 1967. Now that is the background. Before going further, I should point out that the electronic surveillance material examined in the courts below related to the defendant Kolod and the premises which he used in Las Vegas, Nevada. Kolod has since died and the petition as to him has been dismissed on January 29th of this year.Consequently, there is nothing now before the court relating to the electronic surveillance material which was considered by the courts below. We now have wholly new problem. At the post trial hearing in the District Court and in the petition for certiorari here, counsel for Alderisio, another -- the defendants stated that there was newly discovered evidence of a wiretap or listening device used against his client in Chicago between October 1, 1960 and December 31, 1962.? The nature or source of this evidence was not stated, it is this surveillance in Chicago relating to the petitioner Alderisio with which the court is now concern. After the denial of the petition for certiorari, the petitioners sought an order suspending the denial of certiorari pending the filing of a petition for a rehearing. Mr. Spritzer, the acting Solicitor General made a typewritten response to this application. Thereafter, the petitioner filed a petition for rehearing and a motion for the disclosure of electronic surveillance and this is the matter which is now before the Court.
Earl Warren: We'll recess now. Mr. Solicitor General, you may continue.
Erwin N. Griswold: Just before the recess, I said that counsel for the petitioners had filed a petition for a rehearing and a motion for the disclosure of electronic surveillance and that that was where we were now. I left out another step which is the step which is the one which brings us here. The United States made a response to that motion and the Court then on January 29th, entered an order with -- an opinion remanding the case for an adversary proceeding in the District Court. It was then that the United States filed the motion which is now before the court. This is entitled a motion to Modify the Order of the court. In this motion, we accept without a question of any sort this Court's decision that the petitioners here are entitled to the independent determination of a court. We urged however that this should be done in the first instance by the judge in camera with the judge then being free to order such further proceedings as he may deem necessary or appropriate as a result of his examination. This is the procedure, we would point out which was followed in this case with respect to the Kolod surveillance in Las Vegas. This was directly approved by the court below and this court denied certiorari with the questions specifically raised in the petition. Of course that denial is in no sense binding on the court but I do mentioned it to show that there is some precedent for what we urged and similarly the Seventh Circuit as recently sustains such a procedure in the case of Battaglia against United States which was decided there on April 10th. Why should we be concerned?
Potter Stewart: Is that a reported case Mr. Solicitor General?
Erwin N. Griswold: Its -- it is simply cited that way in our brief Mr. Justice, Battaglia against United States but it is not yet in any -- in the federal reporter. I have a copy of the opinion here which I can gladly leave with the clerk if that would be helpful.
Potter Stewart: It might be helpful to me.
Erwin N. Griswold: Why should be we concerned? Why shouldn't the defendants and their counsel be free to see everything and make what they can of it? To borrow a phrase, the automatic knee-jerk reaction would be that way. The question is whether there are any other factors in the situation which merit further consideration. I'm not sure that there are, I can say though that the entire problem is a very trouble someone and is full of difficulties. Various aspects of it have been before the court in seven cases which have been disposed of and there are now six cases pending before the court in which it is involved including this one. For the possible convenience of the court, these have all been lifted -- listed in a brief memorandum which I prepared and have asked the clerk to make available to the court. I find in the process, I've tried to put together a complete collection of all of the papers which have dealt with this problem and they're now 32 items in my collection and it's something of a task simply to keep them sorted out in one's mind. The problem first became apparent nearly two years ago in the case of Black against the United States where after the denial of certiorari, the Solicitor General filed a memorandum in May 1966 which disclosed electronic surveillance. In response to instructions from the court, a further memorandum was filed in July 1966 going in to considerable detail not only as to what had been done but also what the Department of Justice was doing about it. The court then vacated the conviction of Black and remanded the case to the District Court. In that case, there was no doubt that the materials were relevant and the sole question was to determine whether they had led to any of the evidence that was used at the trial. Why should not the same procedure be used in every case? Perhaps it should. This is not an area where there are any clear guides either of principle or of experience. I've worried about the problem almost constantly for the past six months. As a result, I have at least come to the conclusion that there are some matters which are worthy of consideration. The problem of relevance of the material is one you can't get away from. One might say, Well, you bugged him, didn't you? You admit you did, Why don't you come plea and give him the material? But perhaps it's more complicated than that. Seeing the fruits of bugging as a new experience for me, it's a little like putting a live television camera on a street corner all sorts of things happen, most of it is very dull, some of the rest is titillating but quite irrelevant. There's an almost infinite gradation. Let us suppose that a microphone is put in a room which picks up a conference between the defendant and his lawyer. Of course this should be disclosed and where any conversations between a defendant and his lawyer have appeared, we have always disclosed this since the problem arose. We may next suppose that a bug is put in a room of defendant A, this may pick up conversations of A and these may or may not have any conceivable connection with a criminal prosecution. A may discuss a contemplated crime, this might be the crime for which he is being prosecuted or some other unrelated crime or A may discuss a trip he plans to take with another man's wife intrastate in order to keep it from being federal. Moreover, if A's premises are bugged, particularly office or business premises, conversations of many persons may be picked up. In experience, most of the records of the bugging of A's premises will consist of conversations of other persons than A quite often without A being present. Of course such conversation might be relevant to criminal conduct by A and we agree that a judge should decide that question. But generally they will not though they may involve other persons often in highly libelous or embarrassing ways. Should everything be disclosed to A and his counsel even though the conversations are of other people who had no reason to expect that their conversations would be overheard. There's a catch overtone in this problem even though the conversations are of other people and have nothing to do with A's activities. Perhaps most remote is the situation where the bug is put on B unconnected with A. But A wonders into the picture. A comes into the room for some purpose, perhaps business, perhaps a social call, perhaps out of curiosity or by mistake. What may be picked up from A may be relevant but does this mean that the entire record should be made available for A's inspection. In an underworld atmosphere which is sometimes involved in this cases, there maybe wholly irrelevant things said by other persons which would be very interesting indeed to the person who would not get such information unless there had been illegal activity by representatives of the Government. Should all of these be made available to A merely because at some point he came in to the sound tracking? It's bad enough that there was such illegal activity but does the fact there was illegal activity mean that its fruits must be broadcast to the world. As happened in the (Inaudible) case in Boston last May where the materials became an exhibit in the case to somebody's carelessness, I don't know who, it was not sealed, they were then copied by the press in the clerk's office and reproduced with big headlines by many newspapers. It said that this can be safeguarded against by proper protective orders in the District Court. All that I can say is that this has not worked perfectly in practice and I doubt that it will in the future. In any event, it does not protect third persons from disclosure to the defendant himself. And that may in some cases be a very serious matter. Suppose, for example, that in the bugging of A's premises, two of his lieutenants were picked up in his absence discussing how they might displaced it. Thus, it is important to note that the question of what disclosure the Government makes of conversations which it has overheard, involves more than just a right of a particular defendant before the court. It involves the right of each of the participants to the conversation. We believe that the rights of these other participants in overheard conversations and of still other persons to whom reference is made in conversations are also entitled to protection and that the interest these individuals have in keeping the conversations private will often militate against the unnecessary disclosure of the conversations to the defendant. Under the procedure that Mr. Williams proposes, no protection would be given to the interest to these third persons. We submit that by giving the trial judge the discretion to make an in camera examination of the records of the overhearing some degree of protection can be provided to these third parties since records of their conversation would only be disclosed to the defendant if they were arguably relevant to the case at issue. I don't know what the answer is, it is however to coin another phrase, a condition and not of theory that we are confronted with. I have sometimes felt that the answer is that we should gather up all of these records and take them to the place in the treasury where they disposed of worn out paper money and have them all totally destroyed, macerated I think is the term with appropriate witnesses. But we obviously cant do that, indeed in one of the cases now pending before the court, McGarry against the United States number 1184, we are in trouble because something like that did happen. The records there were destroyed, I think without any evil intent but the fact is that they're gone and we don't -- we can't say what was in them. My observation leads me to believe that the Federal Bureau of Investigation has been very methodical about all this. Their records have been well and carefully kept. One can find out where a bug is placed and the dates when it was in use. There's an index not merely of the person's bug but a person's mentioned in the interceptive conversations. However, in the case of some other Government agencies, the records are more scanted. Often records have been destroyed and indexing is less than satisfactory. I suppose that with the passage of time, these problems will fade away. But for the time being, they are very troublesome. Finally, I come to another and very important aspect of the question. It's not directly involved in this Kolod case but the order here may affect it and it cannot be overlooked. The question is involved in Ivanov against the United States, number 885 and Butenko against the United States number 1007 miscellaneous which are pending before the court on petition of certiorari. These are national security cases. For a great many years, electronic surveillance has been specifically authorized and used in cases involving national security as is done by every other country in the world. We're not asking the court in this case to pass on the application of the Fourth Amendment in situations where the surveillance has been undertaken in order to protect the National Security or a military secret, although it can surely be argued that the line of reasonableness and after all this is one place where the constitution does use that word. What it prohibits is not all searches and seizures but on reasonable searches and seizures. This is one where the line of reasonableness surely varies with the circumstances. We do suggest too that super -- that experience supports the view that there are matters which a nation cannot afford to overlook in its own self protection. Where the persons involved have diplomatic status, they can be expelled. Why are we concern then? Well, there are other cases of which Ivanov and Butenko are examples, where criminal prosecution is appropriate. If there has been electronic surveillance, we in the Department of Justice cannot pass on its relevance ourselves. We accept that view and agree with it but we think that question of relevance in such cases should surely be first determined by the judge in camera without further disclosure unless he concludes that such further disclosure is necessary or appropriate. I'm advised that unless disclosure can be confined to in camera consideration by the judge, it will be necessary to discontinue prosecution in most of these cases involving the national security, for the disclosure cannot be made in a way that may become public or to persons who are agents of foreign Governments. That means among other things that we cannot prosecute even though the surveillance is wholly unrelated to the prosecution. If we do not prosecute, we cannot vindicate the law against espionage in these cases as in Ivanov and Butenko. In that event, we will not only have a few less people in our jails but also fewer people to trade and thus more difficulty in obtaining the release of Americans held in other countries. I may say too that I had great difficulty in getting authority to suggest that there could be disclosure for these cases even to judge in camera. This is more than would be done in other countries and perhaps we should not handicap ourselves too much. This Court has long recognized certain special powers in the President in the field of foreign relations and as Commander in Chief of the Army and Navy. The Zimmerman note and the breaking of the purple codes are important events in our history and they were both done by interception. It is said that when Secretary Simpson was Secretary of State in the early 1930's, he terminated this activity and in State Department saying that, Gentleman, don't read other people's mail but by the time he became Secretary of War again in 1941, he changed his view. Here, there are constitutional provisions which point in different ways and the procedure I suggest may be a way of harmonizing them. There are other situations as we point out in our brief where the District Judge on his own responsibility and without a formally adversary hearing makes determinations as to the admissibility of evidence. This has recently been recognized by this Court with respect to prior statements of witnesses given to the Government so called Jencks Act statement and also to the grand jury testimony of Government witnesses that's involved in the Palermo case and then the Dennis cases both rather recently decided.
Abe Fortas: Mr. Solicitor General, does the -- your proposal for handling this material foreign with the statements in the court's opinion in Dennis with respect to procedure there, in Dennis, as appears on page 875, the court's opinion I take it was contemplated that the grand jury transcript might be handed to the judge in camera that the Government might file an application for protective orders as Dennis is in unusual situations such as those involving the nation's security or clear cut dangers to individuals who are identified by the testimony produced. Now, apart from the specific reasons that might be advance to justify the trial judge in refusing the turn over, the bugged recording, does the procedure that you proposed here contemplate that the trial judge's authority to refuse to turn over material will be limited to case where application is made by the Government? That specific parts to be eliminated and presumably that application would be served on the other side, the other side be greater in handicapped of course because when they have access to the material, but that would at least preserved the substance of the points notify the other side that some material is being withhold, withheld and perhaps in general the nature, the reason why in general category it's being withheld and would also preserve the matter on appeal. Now, is the suggestion that you make here differ, does the suggestion you make here differ from that one that I believe is outlined by the court's opinion in Dennis?
Erwin N. Griswold: It's a question of words Mr. Justice.
Abe Fortas: That's also a very important question of --
Erwin N. Griswold: I would think Mr.-- procedure --
Abe Fortas: It's also a very important question of notice and whether the trial judge will proceed to look at this material in camera and then only the Government will know that he has cut out something or withheld something and the reason for him, the preservation of the points for appeal.
Erwin N. Griswold: I would suggest Mr. Justice exactly the same procedure that was followed in this Kolod case in the District Court in two places. The materials are made available to the district judge, the other side is advised that the materials are made available to the district judge but the district judge, if he decides that they are not relevant, simply advises both parties that the materials are not relevant.
Abe Fortas: Well, that --
Erwin N. Griswold: Of course the materials are then preserved under seal --
Abe Fortas: That does --
Erwin N. Griswold: -- and go to the appellate court.
Abe Fortas: That does fall short of the procedure outlined by this Court in Dennis with respect to the grand jury transcript.
Erwin N. Griswold: I believe it does.
Abe Fortas: And why would you exclude the requirement for an application so that the other side will at least have notice that the Government has moved that section, that material identified by pages so and so of the transcript let's say, applications made into the court to withhold that material for national security reasons, withhold other material or grounds of relevance. Why would you object to that?
Erwin N. Griswold: I believe that the other side does know in all cases about the fact of the material. The Government has disclosed the materials in these cases.
Abe Fortas: I don't understand that but go ahead.
Erwin N. Griswold: No, I think you're quite right Mr. Justice, up until the Kolod decision unless the Government concluded that they were arguably relevant and that was interpreted very broadly. There was not even disclosure that is correct. Under the Court's decision in Kolod which we accept, we would now disclose everything where the person involved is mentioned involved in anyway but we would submit it to the judge to decide whether there was anything in it which required further proceeding of any kind. And I find it very difficult to see how you can specify or how it's very useful to the other side to specify. You say we disclosed so many logs containing so many pages and we say that what's on pages 84 to 96 shouldn't go to the defendant. He doesn't know what on pages 84 --
Abe Fortas: And it put the defense on notice so that if they chose they can -- that's -- material has been excluded and in general on the basis of it so that if they choose they can ask the appellate court to take another look at this and there -- thereby you have a bit of supervision --
Erwin N. Griswold: They should certainly have --
Abe Fortas: over the trial judge.
Erwin N. Griswold: -- have that right and they would know in all of these cases that the material had been submitted to the district judge and that he had excluded it.
Abe Fortas: Well, if that is part of your proposal (Voice Overlap) --
Erwin N. Griswold: That is certainly part of our position. We have no suggestion that this be done secretly by the District Court in the sense that the other side doesn't know that it's being done. We do think that the District Judge ought to do it without disclosing the content of the material to the other side. We submit that in balancing all of the factors in this difficult situation, the sound solution is to provide for disclosure to the district judge and I would add with knowledge to the other side that this is been done. With such further proceedings, as he may think necessary or appropriate and for this reasons we submit that our Motion to Modify the Order of the Court should be granted.
Earl Warren: Mr. Williams.
Edward Bennett Williams: Mr. Chief Justice, may it please the Court. The outset I would like to make an analysis if I may of the Government's position with respect to this motion. I'm afraid a fairly hostile analysis because I'm concerned that the sheer proliferation of instances of microphone surveillance that have come to light in last year or so have began to dull our capacity for indignation, at the practice, at its consequences and at Government's position with respect to it. From the papers that have been filed in this case, we readily conclude that petitioner had his premises under electronic surveillance for a non-disclosed indeterminate amount of time. That a device was placed on his business premises for the purpose of picking up his private conversations for an indeterminate length of time. And we further can conclude that in fact his private conversations were picked up over an indeterminate period of time and they were recorded. Logs, memoranda and records were made of those conversations which are now in the possession of the Government. We can further conclude that of course his constitutional rights under the Fourth Amendment have been violated by agents of the Government. And we can further conclude that in doing these acts, agents of the Government transgressed the criminal statutes of the United States because Title 18 of Section 241 makes it a crime to injure any citizen in the enjoyment and the exercise of his constitutional rights, it makes it a crime punishable by a term of imprisonment up to 10 years and a fine of $5,000. And we can conclude further, because this Court can judicially notice the statutes of the State of Illinois that agents of the Government in cavalier fashion violated the statutes of Illinois because there is a very stringent eavesdropping statute which makes it a crime amenable to a term of imprisonment for the perpetrator, to eavesdrop by an electronic device for the purpose of overhearing the private conversations of a citizen. This Court, beginning 14 years ago, put the spoken word within the penumbra of the Fourth Amendment. It did it for the first time in Irvine against California back in 1954. That's repeatedly said so in Silverman in 1961, in Wong Sun in 1963 and twice last year in Burger and Katz. So that agents of the Government have taken seized illicitly on constitutionally and I say even criminally the private conversations of this petitioner. And they hold records, logs and memoranda of those conversations in their possession now but they say that petitioner should not have access to that store of information.
Potter Stewart: Mr. Williams, presumably, they also seized illegally and criminally and all those other adverbs you used, the private conversations of other people too and it certainly wouldn't advanced the right of those people to have those conversations turned over to you, would it?
Edward Bennett Williams: If they seized conversations of other persons, persons other than the petitioner at a time when he was not present on his own premises, I suggest sir, that they violated his constitutional rights because the planting of an electronic device by necessity requires a trespass. It requires perhaps a burglary. In Illinois, it would require a burglary because it would be an illegal entry for the purpose of committing a crime and therefore he would have a constitutional standing to suppress any evidence obtained as a result of that illegal conduct. In order intelligently to exercise his right to suppress, he must know and therefore I say, Mr. Justice Stewart that the right to privacy of the third and fourth party must yield to his constitutional right under the Fourth Amendment and --
Potter Stewart: He has constitutional rights too under this (Voice Overlap) --
Edward Bennett Williams: They have a constitutional right against Government surveillance --
Potter Stewart: Yes.
Edward Bennett Williams: -- which has been abrogated by the Government here. They do not have a right superior to the petitioner's constitutional right to prevent him from learning what was said on those premises. And we need have no fear Mr. Justice Stewart, concerning that because in the first instance the petitioners themselves will ask the Court for protective orders so that their privacy will not be further invaded then it already has been by the action of the Government. And protective orders can be issued under Rule 16 for the benefit of those third parties who are on petitioners' premises who conversed between themselves and who would like to have their privacy protected to the full extent. I suggest that the Government's position on this matter is really vacuous because it is asking this Court to formulate a rule; it is asking this Court to formulate a policy predicated on the fact that the trial judges are unable to enforce compliance with their own orders. It's asking this Court further to formulate a policy predicated on the fact that the miscreant eavesdropper has a greater interest in the privacy of the victim than their victim has. I suggest that all the safeguards that we're concerned about that the Solicitor's -- General has expressed himself on can be taken cared of by protective orders under Rule 16 for those persons. I suggest to the court that basic application of principle fundamental toward jurisprudence equal justice under the law would require -- and we don't ask for this and it's never been done. It would require even a prosecution of the eavesdroppers under the statutes which they have violated. But the basic rules of law, logic, reason and decency certainly require them to make restitution to the victim, to put the victim back as nearly as possible in the status quo if they had gone in to his office and had burglarized his correspondence and made off with it, could the Government be heard to say we shall return only such of his correspondence as his germane to the pending case against him? Could they say that? Is that a defensible position legally or morally? I suggest that is not. Can they do this? Can they go in and listen for months and months to the conversations of an American citizen?
Abe Fortas: Well, Mr. Williams, it's in a little more complicated and subtle in that. Let's suppose you have a Katz's type of situation where those bugging of a telephone booth to get information on Mr. Katz, and let's suppose, I don't believe this happened in Katz, but let's suppose that in the course of that they picked up telephone conversations by Mr. Williams and Mr. Smith and Mr. Jones and so on. Then, they prosecute Mr. Katz and Mr. Katz says, I want all of the bugging records not just the bugging records related to me but I want them all even if Mr. Williams talked to his lawyer or Mr. Smith talked to somebody else. I want them all.
Edward Bennett Williams: Mr. Katz's position would be wholly untenable in my view Mr. Justice Fortas because he's not talking about his own premises when he talks about the use of a public telephone by someone other than himself.
Abe Fortas: Well then, now -- alright. Now, let's take a look at this carefully. What you're doing then is making the assertion that bugging -- that when a person's office I suppose or his home is bugged that he is entitled to the total fruits of that bugging --
Edward Bennett Williams: (Inaudible)
Abe Fortas: -- whatever -- what -- whomever it may involve --
Edward Bennett Williams: I am saying --
Abe Fortas: -- and you would not extend that outside of the premises in which the person has an occupancy right, is that correct?
Edward Bennett Williams: That's exactly what I'm saying Mr. Justice Fortas. I'm saying that the petitioner's office, his business premises were invaded unconstitutionally and illegally and he has the rights to the fruits of that trespass and if the fruits of that trespass happens to be the conversations of two persons other than himself, I suggest that he has a right in order to exercise his motion to suppress intelligently to know what they say and he should received it. I would be the first to say, under a protective order that would safeguard them to the maximum but would still preserve his constitutional rights.
Abe Fortas: Safeguard whom to the maximum?
Edward Bennett Williams: It would safeguard the persons who engaged in the conversation.
Abe Fortas: How would --
Edward Bennett Williams: It would safeguard them from disclosure other than to the defendant and it would safeguard them from disclosures other than we're absolutely necessary in an adversary proceeding designed to protect the Fourth Amendment rights of the defendant.
Abe Fortas: What you're saying is that the court could put the defendant and his counsel under an order not to disclose the contents of the material except in certain circumstances? Is that kind of protective order you're talking about?
Edward Bennett Williams: Yes sir. And as I indicated earlier the petitioner will ask for such an order because the petitioner is not anxious to have his own privacy further invaded. And so he will ask --
Abe Fortas: You mean he wouldn't trust his counsel?
Edward Bennett Williams: He will -- he would trust his counsel but he might not trust the opposition with respect to the conversations that are disclosed because experience has taught us that the miscreant eavesdropper becomes more cavalier with respects to his leaks from his warehouse of stolen privacy after it has been released to the victim. So that there is a reason for asking for such, there is a reason for asking for such a protective order.
Abe Fortas: Is a miscreant eavesdropper maybe a family man who is a member of the police force, is that -- are we talking about the same point?
Edward Bennett Williams: Yes sir, a neighborly policeman, if the Court please. Now, with respect to the position of the Government in which they urged the Court that this really is not anything new, this is really an old traditional way of handling this problem. They say why the courts have been handling this problem in Jencks materials and in the case of grand jury minutes for a long time and that's all we're asking. Well, I think there are two very, very dramatic differences between Jencks materials on the one hand grand jury minutes and the logs, memoranda and records of electronically eavesdropped conversations. The first is, the Government has a right to the Jencks material because they obtained them lawfully. They have a right to the grand jury minutes because they obtained the grand jury minutes lawfully and when a defendant comes in and he asked for a Jencks materials or grand jury minutes, he's asking for something that belongs to the Government to which he has no right unless it is germane to his guilt or innocence. We're not talking about that, we are talking about something the Government has no right. They have no right to his private conversations. They have no right to have invaded his privacy of communication and he is asking for something to be returned that belongs to him and that's the difference between Jencks Act materials, grand jury materials and the logs that we're talking about.
Abe Fortas: Let me ask you one further question if you don't mind?
Edward Bennett Williams: Yes sir.
Abe Fortas: Suppose it's a hotel room --
Edward Bennett Williams: Yes sir.
Abe Fortas: -- and it's -- the occupant of the hotel room is pretty social falling, he has lots of people in from time to time whether he is there or not --
Edward Bennett Williams: Yes sir.
Abe Fortas: -- would you still extend it depending on how long his name appears on the register?
Edward Bennett Williams: Depending upon how long he has a lease to that room, I would say that he has a right and a standing to object to transgressions on the privacy of that (Voice Overlap) on that room.
Abe Fortas: And I suppose -- suppose Mr. X has rented the room, but suppose Mr. Y has been in there a great deal and Mr. Y is the one who is prosecuted not Mr. X and Mr. Y finds out the room has been bugged and so some conversations of interest to him had been obtained. What would be your standard there?
Edward Bennett Williams: Now, Mr. Y you say has --
Abe Fortas: Does not rent the room, he is just --
Edward Bennett Williams: Does not rent the room? Mr. Y is a pure invitee and he has standing there only during the life of his invitation then I would say that his rights are circumscribed by the extent of his invitation and when he's there present, he would have the right to his conversations and those conversations of the persons who were there with him present at his invitation but I would suggest --
Abe Fortas: Only while he is in the room?
Edward Bennett Williams: Yes sir. But I would take the opposite position with respect to the man who has the lease on the room because a whole different set of principles come into play. He is complaining about a trespass against premises which he rented.
Potter Stewart: Your position is that X is entitled to those tapes of Mr. Y's conversation with Mr. Z just as a matter of a property right?
Edward Bennett Williams: Now, let's settle --
Potter Stewart: It's a property right.
Edward Bennett Williams: So that we have our nomenclature correct Mr. Justice Stewart, is X the lessor of the room?
Potter Stewart: Yes, he is the lessor.
Edward Bennett Williams: Lessee?
Potter Stewart: He is the lessor.
Edward Bennett Williams: The lessee?
Potter Stewart: The conversation is between -- lessee?
Edward Bennett Williams: Yes.
Potter Stewart: The conversation is between Y and Z --
Edward Bennett Williams: And I say yes --
Abe Fortas: -- in a room that X has rented.
Edward Bennett Williams: If X is a defendant in a criminal case and there has been a trespass by the agents of the Government against his room, there has been the planting of electronic device in his room then I say the Government may not profit against him in its prosecution by its own misconduct, by its own criminal conduct, by its own burglary that in order for him to suppress that which is been gained as a result of that trespass or burglary, its necessary for him to know under a protective order what was gleaned thereby.
Potter Stewart: Well, your point was that the conversation between Y and Z is the property of X, he is entitled to his property right?
Edward Bennett Williams: I'm saying he has the right to know, sir.
Byron R. White: Mr. Williams, I take it that X wouldn't have known what Y and Z said between themselves except for the Government's bugging. I don't suppose he could have ever found out what Y and Z said while he wasn't there.
Edward Bennett Williams: That's right.
Byron R. White: But your point is that if the Government violated his rights, what Y and Z said between them might have certainly approved some very valuable lead to the Government in --
Edward Bennett Williams: Yes sir.
Byron R. White: -- proving their case.
Edward Bennett Williams: Yes, sir, exactly and --
Byron R. White: And that you can't ever tell that until you look at it?
Edward Bennett Williams: Until you look at it. And I say this with respect to the position urged by the Solicitor General, in which he would advocate the judges looking at this material in determining what of it should be given to the petitioner. I'll take second place to no one in my respect for the courage, the independence, the objectivity and the fairness of the federal trial bench in this country but without as a preface, I say respectfully that the trial judges are not equipped or qualified to do this job. They can't do it. There is no way that they can determine what has been relevant to a prosecution. We all know it's been said a hundred times I suppose that a criminal prosecution is -- the old metaphors it's like an iceberg, one eight of it shows and the layers know the seventh eights it's under water. Where the trial judge is determining whether Jencks material is relevant, he has just heard the witness testify on direct examination. Now he juxtapose as a sheaf of papers to determine whether there is an inconsistency between what he reads in the Jencks material and the direct testimony and he can do that. Even with respect to grand jury testimony he may with diligence take the grand jury testimony and read it carefully, juxtapose it against the direct testimony of the witness whom he has just heard and make a determination that there is something useful there to the defense but we're not talking about that. We're not talking about sheaves of material, we are talking in -- as our paper show, we are talking about electronic surveillances which have produced cases of material. Is the judge to be handed cases of logs and memoranda and as he was in one case and had to delegate part of the responsibility to another judge and take four and half weeks to read it. Is he to do that and try to determine what is relevant to the skeleton of an indictment because in most instances, these motions will be before trial? Let's assume it was an income tax case. The standard indictment in an income tax case today is the words of the statute, a number and a year. If its a net worth case and if there has been an electronic surveillance of the taxpayer for three of four months, and if the trial judge is handed a room full of materials, how in the name of reason is he going to determine what is relevant to that case. Only the counsel and his client can make that determination. Why? Because the way it's done, if the Court please, supposing the taxpayer had a telephone conversation with his lady friend to use the same illustration as was used earlier, as the result of the lead from that conversation the lady friend will be interviewed and as a result of that, ffurriers and jewelers and perhaps automobile salesman will be unearthed. They will show up as witnesses at the trial. There will be nothing to suggest that that lead came from what might have been an innocuous conversation with his ex-lady friend. And how it would be concealed, it will be concealed in the most interesting clandestine and surreptitious way because the nomenclature in the lexicon of the eavesdroppers is confidential informant. As the result of a disclosure from a confidential informant, we interviewed C, the ex-lady friend of the suspect and we found out the following so that there is no way that the judge is going to know that this evidence has been unearthed as a result of an electronic eavesdropping device. And in fact as we point out in our papers, Government counsel themselves have been beguiled by this tactic and have stood up in good conscience and in good faith and made misrepresentations to the court with respect to the source of their evidence. Why, because the eavesdropper conceals his illegality and his illicit conduct and he does it with a standard investigative nomenclature confidential informant discloses. Furthermore, we have shown illustrations where the monitor in charge of the case has been more sophisticated than to reduce this to writing. Instead, he monitors the electronic device. He listens for leads and then that evening he calls in the field and he tells the field agents go check this out. Go check this out. Check this out. The field agent is kept completely in the dark. He never knows that the lead was born from a tainted source and that the evidence which he is unearthing is polluted and he is prepared to come in and say, Well, I developed this lead from a perfectly lawful source and I did it as a result of an instruction from my superior. When the superior is then called to the stand to find out where he got his lead, he has the cloak of confidential informant and the bug is not unearth and I suggest that only counsel, counsel with his dedication to his plan will lead all that material and who knows the facts and who knows the case from beginning to end can do the job of determining what is relevant and what is germane and what leads were unearthed with respect to the prosecution (Voice Overlap) --
Byron R. White: Now, in your example with the lady friend, I suppose that you are saying that you're not only should know whose conversations were picked up but actually what the content was even though, I don't suppose even diligent counsel would suggest that perhaps you can unearth any helpful, anything out of the content of what was said --
Edward Bennett Williams: Yes.
Byron R. White: -- I mean that you would -- that the two people say to each other, Well, are you going to the movies? And I -- they say -- the other one says, Yes. Well, now perhaps, what was said wouldn't be very relevant and I suppose it might be very critical to know that those people were actually talking on the defendant's premises.
Edward Bennett Williams: It comes very critical Mr. Justice White.
Byron R. White: I mean but so -- I gather that wouldn't satisfy you if they just disclosed to whose conversations were picked up?
Edward Bennett Williams: No sir, I wouldn't.
Byron R. White: Although, you would consider must be some conversations, the content of some conversations that would be pretty hard to imagine that they were relevant to the case.
Edward Bennett Williams: I would readily concede Mr. Justice White that when counsel has access to the conversations that were illegally picked up as a result of this microphone surveillance on his client, he is going to find irrelevant materials but I say that only counsel and the petitioner can make that determination properly. It cannot be made by the trial judge. There is no way that the trial judge can make that kind of determination. Now, I suggest that this problem was dealt with 18 years ago. The exact problem was dealt with by the Second Circuit Court of Appeals speaking through Judge Learned hand in the United States against Kaplan. It is in -- on all force with this case except that it had the additional factor of having national security overtones. And in that instance where there was wiretapping, the trial judge had all of the materials turned over to him in camera and he of coursed released much of that material to the defendant and her counsel but he made an in camera determination that a large portion of it was irrelevant and he did that on the ground that the National Security was involved and that was the representation that was made to him by counsel for the Government. That case went to the Circuit and of course it was overturned, it was reversed and the court found that there was error there of constitutional dimensions and the court reversed the case and sent it back for a retrial that never took place. Now, that case to my knowledge and I say this without serious fear of contradiction has never been assailed buy the untied States Government in the eighteen years of its life. It's been cited with approbation by this Court. I have heard it distinguished many times but I have never heard it assails such as it has been in the Solicitor General's brief in this case because the Government now takes the position that the Second Circuit Court speaking through Judge Learned Hand decided the case of Kaplan against the United States erroneously. I say if the Court please, that the root of the question post by the Government's motion is this, is it alright for the Government to say to one of its citizens even with the approbation of a federal district judge, we have had a faceless informer in your house furlough these many months and we have listened to you conversations and we have recorded those conversations and we have them in logs, in memoranda and records in our warehouse of stolen privacy but be of good cheer because we have examined them and we find nothing significant to this pending case so for the moment you are safe and so that you will continue to be safe we'll just keep all of these records and these memoranda and these logs but its better that you don't know what is in them. I suggest to this Court that a Government that has began to wince at a full disclosure of the methods that it uses to prosecute and imprisoned its citizens is Government that has begun to loose its feel for freedom.
Abe Fortas: Well, Mr. Williams, I hate to interrupt you but do I take it by our reference to U.S. against Kaplan that you see no way of making a distinction between the organized crime type of case that we see here and the National Security case?
Edward Bennett Williams: I believe Mr. Justice Fortas that I don't want to make suggestions with respect to how any member of the executive branch of Government who was charged with the security of this country fulfills his duties. But I do say this to you, I don't think that we can mix the morals of the Cold War with the morality of the administration of criminal justice and I think if there comes a conflict between security and the rights of the individual then the Government should make an endow shaped typed decision. It should determine whether or not it wants to make the necessary revelation to protect the Fourth Amendment rights of the citizen or whether it wants to dismiss this case. And I add this I suggest that this is an in terrorem argument, it's a boogeyman because how can it ever compromise the security of the United States to return to someone his conversations which have been electronically eavesdropped on. How in the name of reason can that be --
Abe Fortas: Oh, it should on the basis of what you have said in those --
Edward Bennett Williams: How can that be violative --
Abe Fortas: To extend the --
Edward Bennett Williams: -- to the security?
Abe Fortas: -- your occupancy theory, you could certainly turnover to a story book kind of an international spy or --
Edward Bennett Williams: It takes up a very --
Abe Fortas: -- the material that he wouldn't otherwise be aware of.
Edward Bennett Williams: Well, it would take a far more prolific imagination than I have to conjure up a situation where information picked up on an electronic eavesdropping device designed to catch a spy would give him information which he did not have access to in the first instance --
Abe Fortas: Well, I think if you'd tried, you could imagine that.
Edward Bennett Williams: Well, I've tried since you began to post the question and I failed.