Byron White

“ The answer, it seems to me, must turn on the affidavit of the Attorney General offered by the United States in opposition to defendants' motion to disclose surveillance records. It is apparent that there is nothing whatsoever in this affidavit suggesting that the surveillance was [p341] undertaken within the first branch of the § 2511 (3) exception, that is, to protect against foreign attack, to gather foreign intelligence or to protect national security information. ”

“ The shortcomings of the affidavit when measured against § 2511 (3) are patent. Indeed, the United States, in oral argument, conceded no less. The specific inquiry put to Government counsel was: "Do you think the affidavit, standing alone, satisfies the Safe Streets Act?" The Assistant Attorney General answered "No, sir. We do not rely upon the affidavit itself. . . ." Tr. of Oral Arg. 15. [4]
Government counsel, however, seek to save their case by reference to the in camera exhibit submitted to the [p342] District Court to supplement the Attorney General's affidavit. ”

“ The defendants in the District Court moved for the production of the logs of any electronic surveillance to which they might have been subjected. The Government [p339] responded that conversations of Plamondon had been intercepted, but took the position that turnover of surveillance records was not necessary because the interception complied with the law. ”

“ Q. . . . I take it from your answer that Congress could forbid the President from doing what you suggest he has the power to do in this case? Mr. Mardian [Assistant Attorney General] : That issue is not before this Court — Q. Well, I would — my next question will suggest that it is. Would you say, though, that Congress could forbid the President? Mr. Mardian: I think, under the rule announced by this court in Colony Catering, that, within certain limits, the Congress could severely restrict the power of the President in this area. ”

“ Neither can I conclude from this characterization that the wiretap employed here fell within the exception recognized by the second sentence of § 2511 (3) , for it utterly fails to assume responsibility for the judgment that Congress demanded: that the surveillance was necessary to prevent overthrow by force or other unlawful means, or that there was any other clear and present danger to the structure or existence of the Government. The affidavit speaks only of attempts to attack or subvert; it makes no reference to force or unlawfulness ”

“ I would request the court, at the conclusion of its hearing on this matter, to place the sealed exhibit in a sealed envelope and return it to the Department of Justice, where it will be retained under seal so that it may be submitted to any appellate court that may review this matter. App. 20-21.
↑ . I cannot agree with the majority's analysis of the import of § 2511 (3) . Surely, Congress meant at least that, if a court determined that in the specified circumstances the President could constitutionally intercept communications without a warrant, the general ban of § 2511 (1) would not apply. ”