New Curb on Bugging

Shortly after taking office, the Nixon Administration claimed the right to eavesdrop--without a judicial warrant --on anyone it chose to consider a threat to the national security. By the time the issue reached the Supreme Court, Nixon had appointed four new Justices, so the Government thought its chances of enforcing the claim seemed promising. But last week, by a vote of 8 to 0, with Justice William Rehnquist abstaining, the court declared that bugging or tapping domestic political "suspects" without a warrant is illegal. "Those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks," said Justice Lewis Powell.

The Administration's failure to make a case was highlighted by the fact that Powell wrote the court's opinion. Just last year, when Powell was a lawyer in private practice, he wrote that "the outcry against wiretapping is a tempest in a teapot. Law-abiding citizens have nothing to fear." From his new vantage point on the Supreme Court, however, Powell found that the Government's electronic surveillance was not "a welcome development --even when employed with restraint."

Too Complex. The Justice Department had wanted to avoid the Fourth Amendment's rule on warrants because it uses electronic devices to gather general intelligence on various political groups, and it argued that its reasons for doing so are too "complex and subtle" for a judge to evaluate competently. Powell responded sharply: "If the threat is too subtle or complex, one may question whether there is probable cause for surveillance . . . The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power."

Powell did not deal, however, with warrantless eavesdropping on foreign agents, which the Government has felt free to do ever since President Roosevelt authorized taps on suspected spies during World War II. "No doubt," said Powell, "there are cases where it will be difficult to distinguish between 'domestic' and 'foreign' activities directed against the Government. But this is not such a case."

Specifically, the case before the court involved Lawrence ("Pun") Plamondon, a member of a left-wing organization called the White Panthers, who was accused of bombing a CIA office in Ann Arbor, Mich. The Administration did not contend that any foreign government was involved, and therefore, the court ruled, there was no question that Plamondon was protected by the Fourth Amendment.

Attorney General Richard Kleindienst appeared unfazed by the court's decision. "I asked the FBI to compile a list of surveillance devices yesterday afternoon, and they should all be pulled by now," he told TIME'S David Beckwith the day after the decision. How many such devices were there? "Very few. You could probably count them on the fingers of both hands. We only used them where we thought there was a threat of violence. I had just authorized a couple more last week, but I'm not going to talk about any individual taps. If I say anything, they [defendants and suspects] will come in and ask for transcripts of everything we took."

No Bleeding Heart. Kleindienst was referring to a Supreme Court ruling three years ago which declared that individuals subjected to illegal eavesdrops have a right to transcripts of what has been overheard if they are to be prosecuted. Warrantless taps are known to have been used, for example, in investigations of the Chicago Seven and in the recent Berrigan case. Wherever violations are found, the Justice Department will have to either disclose the details of the eavesdropping or drop prosecution. Wouldn't it be only proper to inform anyone who has been illegally overheard? "Hell, no," said Kleindienst. "Our duty is to prosecute persons who commit crimes. We don't have to confess our sins anywhere, like some bleeding heart. We were acting in good faith."

What paths will the Administration now follow? The President at his press conference said that no legislation would be sought to eliminate the warrant requirement. Other Administration sources, however, were interested by a suggestion in the court's opinion that Congress could establish different and presumably easier standards for issuing warrants in security cases.

Meanwhile, according to a spokesman for Justice's Internal Security Division, "the ruling will make the division's job a little more difficult, but it certainly doesn't put it out of business. We took the position before the court that you cannot separate foreign from domestic threats, and we still believe that. It's a fine line, one that the court could only define as 'no significant connection with a foreign power.' I imagine that we will consider any real connection to be 'significant' until we're instructed otherwise."

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