Fundamental Choice

By ruling against the Government in a set of appeals last week, the Supreme Court imposed upon Government lawyers a fundamental choice for many future cases. A 5-to-3 majority of the Justices declared, in effect, that the Government must show an accused man the records of any illegal bugging or wiretapping made on his private conversations, or on any talks that took place on his premises. Either that, or the Government must drop the prosecution altogether.

The appeals involved two men who were convicted of conspiring to transmit U.S. defense secrets to the Soviet Union--an American engineer named John Butenko and Igor Ivanov, a chauffeur for a Soviet trade agency in the U.S. In their cases, and another that involved a pair of extortionists, the Government's position was that the trial judge should decide what portions of the eavesdropping transcripts were "arguably relevant" to the trial. He would then turn over those portions--and only those--to the defense.

Avoiding the Issue. By giving all of the transcripts to the defense as a matter of right, Justice Department lawyers complained, the court ruling would jeopardize national security investigations. It is widely known that the U.S.. Government taps phones in foreign embassies--and it rarely asks a court's permission. Other countries do the same to U.S. embassies abroad. But no one likes to own up to the practice. To reveal the records of such surveillance would be an embarrassing admission of spying. More important, because of the court's decision, the Government may decide not to prosecute, for it would not want a foreign power to know what it had learned through listening devices.

In arguing against each appeal, Government lawyers studiously avoided mention of the sensitive embassy issue. Justice Byron White, a former Deputy Attorney General who wrote the majority opinion, also made no mention of embassy bugging. White argued that the adversary system entitles the defendant to see all the records of improper eavesdropping, and if it seems worthwhile, to try to prove that the eavesdropping has "tainted" the Government's case. In a dissenting opinion, Justice Abe Fortas generally shared White's view. But on the other hand, Fortas said, the judge alone should be allowed to decide whether to turn over to the defense any portion of the record that the Government claims would, if disclosed, damage "national security interests."

Rare Step. As a result of the court's decision, the Government now expects a wave of appeals. Among the cases that some lawyers think may have to be dropped because they involved illegal eavesdropping are the convictions of Cassius Clay on draft-dodging charges and of Dr. Benjamin Spock on conspiracy charges. Even Teamster Boss Jimmy Hoffa, who is serving time for jury tampering, may be entitled to a new hearing.

Thus, the Government plans to take a rare step this week. It is preparing to petition the Supreme Court for a rehearing on the decision. At the very least, it is seeking to carve out an exception for national security cases, just as was proposed by Justice Fortas.

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