The Law: Overruling Mitchell

After years of confusion over the legalities of electronic eavesdropping, Congress attempted to set rules in the Omnibus Crime Control Act of 1968. Law-enforcement agencies were permitted to wiretap in ordinary criminal cases, provided they first obtained a court-approved warrant. Under the Fourth Amendment to the Constitution, such warrants require "probable cause"—proof that officials are probing with specific evidence of a crime, not just trying to trap possible wrongdoers. The 1968 law, though, did not limit the President's power "to obtain foreign intelligence information deemed essential to the security of the United States" or "to protect the United States against the overthrow of the Government by force."

Serious Threat. Unfortunately, the law did not say whether the President's agents need warrants in such cases. The Supreme Court has not ruled on that subject—nor has it ever suggested that warrants are unnecessary in cases of domestic subversion. Yet Attorney General John Mitchell has authorized no-warrant wiretaps of domestic radicals who Mitchell is convinced pose a serious threat to national security. According to Mitchell, the Government's authority is implicit in the President's power to wage war and protect the country; he is the first Attorney General to make such a claim. On that assumption, Mitchell did not seek court approval in authorizing wiretaps on conversations by one of three members of the White Panther Party who were charged with conspiracy in the bombing of a Central Intelligence Agency office in Ann Arbor, Mich.

Lawyers defending the White Panthers cited a 1969 Supreme Court ruling that requires prosecutors to disclose bugging evidence so that trial judges may determine whether it was gathered in violation of the Fourth Amendment. When Mitchell balked at disclosure, U.S. District Judge Damon J. Keith ordered the Government to heed the rules or drop the case. Mitchell promptly appealed the case to the U.S. Court of Appeals for the Sixth Circuit in Cincinnati.

Awesome Power. Last week the appellate court rejected Mitchell's argument. Declaring that there was not "one written phrase" in the Constitution or the statutes to support the Justice Department's position, the court ruled that the Constitution forbids wiretapping of domestic radical groups without court approval. Speaking for a 2-1 majority, Judge George C. Edwards rebuffed the Administration's claim of a unilateral right to conduct domestic wiretapping. That "awesome power," said Edwards, does not belong to the Executive Branch alone. Edwards, a former Detroit police chief, was skeptical of Mitchell's assurances that Attorneys General would be discreet in using the power. "Obviously," said Edwards, "even in recent days, this has not always been the case."

The immediate impact of the decision, the first by an appellate court on the issue, was to uphold Judge Keith's ruling in the White Panther case and make it the law in the Sixth Circuit (Tennessee, Kentucky, Ohio and Michigan). More important, if the decision is upheld by the Supreme Court, the Justice Department will have to get warrants in order to bug suspected domestic subversives. Since it apparently has not done so up until now, it would not be able to prosecute on the basis of any wiretap evidence it may now have.