(dissenting) :
What the panel majority does here is to vacate the contempt citations on the flimsiest of allegations — “the mere assertion that unlawful wiretapping has been used against a party” — on a statutory interpretation which Judge Bazelon with commendable candor demonstrates is shot with uncertainties and contradictions, and on a constitutional prop based on an interpretation of a 51-year-old Supreme Court opinion whose three pages had never hitherto been thought to contain so much.
It is not only the legal foundation of the majority’s action which troubles me, but the inescapable impact on the whole process of criminal justice if this decision is allowed to stand.1
*1253 I. The Facts in the Evans Case
Before taking issue with the majority-opinion on the law, I feel it desirable to state for the record the extent to which this witness and others in similar cases have gone to frustrate the administration of justice. If it were frequently duplicated, petitioner Evans’ conduct before the grand jury on the 8th and 15th of June 1971 would make a mockery of any fair system of procedure.
On 8 June she appeared at 2:33 p. m., and from then until 4:30 p. m. when it adjourned, the grand jury was able to ask 11 questions, 3 or 4 at a time. After each set of questions she insisted on her right to go out and consult with her attorney. On her return after presumably receiving his advice, she was asked the same questions again, and refused to answer, except in those instances when she asked to go consult her attorney for the second time on the same question. Her trips out from the grand jury room consumed from 5 to 45 minutes on each trip.
On 15 June, after the first questions were put to her, she left the grand jury room at 1:59 p. m. to consult with her attorney and returned at 3:48 p. m. The identical questions were again put; she again asked and received permission to consult her attorney as to the answers, and left the grand jury room. On her return she read a prepared statement raising every conceivable objection, including that the “grand jury questioning violate [s] * * * my right to adequately consult with counsel after each question.” 2
*1254To gain an impression of the tenor of her objections, the second question on 8 June (after “What is your name?”— which she never answered) and her response are illuminating:
Q. What is your occupation ?
A. I, Carol Evans, without waiving any and all of my rights under the First, Fifth, Sixth, Ninth and Tenth Amendments, and Articles 2 and 3 of the United States Constitution, and on the advice of Counsel, and without any desire to obstruct the proceedings of this Grand Jury, refuse to testify because I am not properly before this Grand Jury in that upon information and belief, I have been subjected to electronic surveillance and/or wiretap in violation of my rights under the Fourth Amendment to the United States Constitution and under 18 United States Code Sections 2515, 2518, Sub-part 10A and 2510, Sub-part 11, and that the subpoena issued to me and the questions asked are the fruit of that electronic surveillance and/or wiretap.
Observe that the objection raised to answering the question, “What is your occupation,” was her alleged rights under the Fourth Amendment and certain sections of the United States Code, on the grounds that the question was the fruit of an illegal wiretap. No grounds for this belief were stated by the witness, and why the routine introductory question, “What is your occupation,” asked by an Assistant U. S. Attorney in the grand jury room, should ever be thought to be the fruit of an illegal wiretap is beyond me.
Nor was petitioner Evans’ affidavit filed in the trial court more illuminating:
I, Carol Evans, upon information and belief hereby allege under oath that wire tap and/or electronic surveillance have been conducted against me and the organizations with whom I have been associated.
And further, I allege that the subpoena issued for me and the questions to be posed by the grand jury are the fruit of that wiretap and/or electronic surveillance.
Observe that in neither the statement before the grand jury nor in the affidavit filed is there any allegation whatsoever as to any ground of rational belief that the petitioner has been subjected to wiretapping, there is no allegation that any government agency was responsible for the electronic surveillance, nor is there any specification of the persons with whom she believes her conversations were wiretapped, nor in what city in America or abroad, nor on what dates, not even as to during what years. The result, of course, of permitting such allegations as these to halt the grand jury proceedings while contempt citations are obtained, and appealed, and vacated, and left to the trial court for further investigation, is to make the conduct of the Government's business and administration of justice a nightmarish absurdity.
When the petitioner — and the majority here adopts this position — urges that all the Government has to do is come in and say there were no wiretaps at all involving the petitioner or that the wiretaps were authorized by court order and therefore petitioner has no complaint, this ignores the enormous labor that is necessary for the various investigative agencies of the federal Government to search their files to establish a negative, even after the passage of the wiretap provisions of the 1968 Crime Control Act,3 which requires the investigative agencies to get' a court order. It is not *1255only the FBI but also various agencies of the Treasury and perhaps other departments which utilize electronic surveillance.
Certainly any petitioner alleging an illegal wiretap should be required to allege with particularity as to his belief he was wiretapped, as to the period of time, the places, the persons with whom he conversed, and by whom these conversations were intercepted. As petitioner’s allegations stand now, she does not even claim a government agency conducted the electronic surveillance, the period of time could embrace her entire articulate life, no part of the entire globe is excluded, and every person with whom petitioner ever conversed (by phone or otherwise) is within the area the Government must consider before giving its response. If petitioner had been always the specific object of surveillance — and there is nothing in the record to indicate she has been ever an object of surveillance — -the government task might be less arduous. But since she has not specified by whom, when, where, and with whom, to which her alleged fears of wiretapping relate, the Government must perhaps review all, certainly a vast quantity, of its records re wiretapping, to answer conscientiously in the negative or to specify what, if any, electronic surveillance involved even peripherally this petitioner.
The legislative history of Title VII to the Organized Crime Control Act of 1970 4 gives some idea of the extensive labor required each time a defendant (in this case only a witness who has been granted immunity and can never be a defendant re these matters) asserts that wiretapping is involved in his prosecution. In Alderman v. United States5 the electronic surveillance record, which the Department of Justice screened for potential relevance in the District Court, comprised approximately 905 typewritten pages.6 In the two District Court hearings in the Alderman case, on the electronic surveillance allegations alone, 205 attorney man-days were occupied in preparation and hearing.7 During a period of less than one year from the autumn of 1969 to 9 September 1970, the attorneys of the Department of Justice made 6,750 inquiries of the Federal Bureau of Investigation alone, not counting possibly other federal investigative agencies, to ascertain whether particular individuals had been subjected to electronic surveillance.8 In addition to processing the 6,750 inquiries, the Department was involved in perhaps 75 to 100 disclosure hearings resulting from defendants’ claims that their cases were tainted by unlawful electronic surveillance.9
These statistics deal with the allegations of defendants. Petitioner here has been granted immunity, cannot be a defendant in this case under investigation or in any related case, and she is only a witness. If every witness were given the right, accorded by the panel majority to petitioner Evans on an unsupported allegation, to compel the District Court to conduct a hearing as to the existence or nonexistence of illegal electronic surveillance, and each and every witness before the grand jury in this type of case were to raise the unsupported allegation of wiretapping, the whole effort of the Government to investigate the existence of any criminal acts would be brought to a grinding halt.10.
*1256The majority opinion (Part III) devotes considerable pains to an effort to show that somehow the 1968 Crime Control Act would greatly ease the Government’s problem. Regretfully, such is not the case. Regretfully, I submit that the majority opinion demonstrably fails to grapple with the real nature of the problem.
(1) Making specific the legal procedure for Government electronic surveillance does not mean either that there will be less Government electronic surveillance or that the records the Government keeps for its own internal use will be different. The Government is now required to obtain prior permission and to file certain inventories with the court. Presumably the type of Government wiretapping found necessary before June 1968 will continue necessary, will be no more or no less widespread than before. The difference is that private wiretapping is how strictly prohibited and Government action is only with prior court permission.
(2) Most importantly overlooked by the majority, making specific the legal procedure doesn’t affect in the slightest the problem of the Government where the witness himself — as probably is true here — was not the object of the permitted surveillance. The number of identified and unidentified passing objects brought into the ken of all authorized directed surveillance is simply unknown. What the majority refers to as “no more than the marginal burden imposed by our ruling that the statutory privilege is available to witnesses as well as defendants” is the real crux of the practical problem. Wiretaps on defendants are the most likely to be easily located, not those on casual witnesses.
The majority seems to think that, because prior permission and subsequent report re the specific objects of surveillance are now required, the Government task in determining all interceptions of a witness not the primary object of surveillance is made easier. The two mutters are not even related.
(3) The majority’s observations “The burden will remain great, to be sure, if the government conducts wiretaps which are not properly reported and which are therefore unlawful” and “unless the government makes a habit of conducting lawless wiretaps, a motion under § 2518 (10) (a) can ordinarily be resolved with little difficulty” are equally wide of the mark. Legality or illegality has nothing whatever to do with internal Government records available to determine if this or any other witness has been subject to surveillance.
I submit that the real answer — toward which the majority opinion is groping, thus illustrating the inadequacy of all judges in dealing with the practical aspects of a problem in the complete absence of empirical data — lies not in the 1968 Crime Control Act requirements of public disclosure but in computerization. To the extent the Government has been able to computerize its data on all persons participating in or mentioned in conversations under surveillance — irrespective of whether such interceptions were legal or illegal, pre- or post-June 1968, court-ordered or not — retrieval will be facilitated. The 1968 Crime Control Act, the majority to the contrary notwith*1257standing, does absolutely nothing in this regard.
If any would argue that the practical consequences of a holding on the legal issues involved here are of no import where the rights of an individual are at stake, this misses the whole relevance of the above discussion of the known empirical data and the easily foreseeable consequences. The legal issues here are what Congress intended in the statute and whether the exclusionary rule derived from the Fourth Amendment should be extended to embrace an admittedly new area. On these legal issues the inevitable consequences of the interpretation of the statute do have a bearing on what Congress intended, and the application of the exclusionary rule is always considered (see Supreme Court cases under Part III) by weighing its probable deterrent effect versus its inevitable denial of justice’s right to the truth.
To ascribe such an intent to Congress, an intent to thrust this new, totally unprecedented burden on the machinery of justice by changing the character of the centuries old grand jury proceeding to an adversary type, could only be supported by the strongest and clearest statutory mandate. The panel majority makes no pretense of finding this. That Congress had no such intent, and went to extraordinary pains to refute any such implication, is shown by the language of the statutes and their legislative history, to which I now turn.
II. The Statutes and Decisions Thereunder
A.
In oral argument petitioner’s counsel was quite frank in admitting that there is no Supreme Court case which permits a person not a defendant (or not clearly a prospective defendant) to challenge on Fourth Amendment grounds the source of the Government’s evidence presented before the grand jury. Petitioner does contend that Silverthorne Lumber Co. v. United States11 by inference supports her position, this is virtually the sole decisional authority relied on by the panel majority, and this will be dealt with under Part III below. But the essence of my two colleagues’ position is that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 12 confers upon petitioner standing to challenge this source of the Government’s evidence, when petitioner is only a witness and has been granted full transactional immunity to preclude her from being named as a defendant in this or any related case.
Petitioner’s case rests primarily upon 18 U.S.C. § 2515, Prohibition of use as evidence of intercepted wire or oral communications, which states:
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter. (Emphasis supplied.)
If this were all of the relevant statute, of course, we would have no argument either in the trial court or here, and the Ninth Circuit would not have held three times, and the Fifth Circuit once, that a witness similarly situated to petitioner Evans had no right, on the basis of an allegation of illegal wiretapping, to refuse to answer inquiries before the grand jury.
The Senate Report13 on § 2515 states: The provision [imposing an evidentiary sanction to compel compliance with *1258the other prohibitions] must, of course, be read in light of section 2518(10) (a) discussed below which defines the class entitled to make a motion to suppress. It largely reflects existing law. * * * There is, however, no intention to change the attenuation rule, -x- * * Nor generally to press the scope of the suppression role beyond the present search and seizure law. See Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954).14 (Emphasis supplied.)
Turning now to § 2518, Procedure for interception of wire or oral communications, we find under subsection (10) (a):
Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom on the grounds that—
(i) the communication was unlawfully intercepted; * * *
The first thing to observe here is that the list of persons or bodies before which the evidence is to be received or not to be received is in the exact order as that of § 2515, with two notable omissions: grand jury and legislative committee. This was not inadvertent. When compared with other sections of the same statute, and the expressed intent of Congress, it appears highly significant. It so appears in the Senate Report:
Paragraph [2518] (10) (a) provides that any aggrieved persons, as defined in section 2510(11), discussed above, in any trial, hearing or other proceeding in or before any court department, officer, agency, regulating body or other authority in the United States * * * may make a motion to suppress. * * * This provision must be read in connection with sections 2515 and 2517, discussed above, which it limits. It provides the remedy for the right created by Section 2515. Because no person is a party as such to a grand jury proceeding, the provision does not envision the making of a motion to suppress in the context of such a proceeding itself. * * * Nor is there any intent to grant jurisdiction to federal courts over the Congress itself.15 (Emphasis supplied.)
The immediately preceding subparagraph of § 2518, subparagraph (9), now becomes relevant and illuminating:
The contents of any intercepted wire or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. * * * (Emphasis supplied.)
So “each party” is to receive a 10-day notice of wiretap evidence to be used. But, as cited above, we are told in the Senate Report that since “no person is a party as such to a grand jury proceeding,” “a motion to suppress in [a grand jury] proceeding” is not envisioned.
Subparagraph (9) has a somewhat abbreviated list of proceedings in which wiretap evidence is to be received: “[A]ny trial, hearing, or other proceeding in a Federal or State court.” If a grand jury is to be included, it obviously falls within the words “other proceeding.” But the Senate Report shows that “grand jury” was not intended to be included within “other proceeding.” “ ‘Proceeding’ is intended to include all adversary type hearings. * * * It would not include a grand jury hearing. Compare United States v. Blue, 384 U.S. 251, 86 .S.Ct. 1416, 16 L.Ed.2d 510 (1966).” 16
*1259Petitioner seizes upon the words “aggrieved person” in § 2518(10) (a) quoted above, and emphasizes that under § 2510(11) “ ‘aggrieved person’ means a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.” Thus the petitioner here puts together the language of § 2518 (10) (a) giving a right to make a motion to suppress to an “aggrieved person,” the definition of “aggrieved person” in § 2510(11), and the flat prohibition of use of intercepted wire communications under § 2515 which does list both a grand jury and a legislative committee. My two colleagues accept this rationale.
BUT, this line of reasoning takes into account only parts of the statute, and overlooks the deliberate omission of “grand jury” and “legislative committee” in both 2518(10) (a) and 2518(9). The legislative history shows plainly, as quoted above, that the omission of the words “grand jury” and “legislative committee” is purposeful, that there is no intent on the part of Congress to confer a right on any person, aggrieved or not, to suppress electronic surveillance evidence before a grand jury or a legislative committee, whether by affirmatively moving to suppress or passively standing mute. This is unmistakably clear in the legislative history to §§ 2515, 2518(9), and 2518(10) (a), cited above, and the cumulative effect of this legislative history was not discussed in any part of the Third Circuit opinion in Egan, the sole decision (or part thereof) under this statute supporting the position of my two colleagues.17
Section 2518(10) (a) defines in what type proceeding and by whom the legality of the Government’s wiretap evidence may be challenged. Section 2518(9) requires the Government to furnish those parties who have been subjected to electronic surveillance the authorization for interception of their communications at least 10 days before it is to be used— undoubtedly in order to provide them with an intelligent basis upon which to challenge admissibility. Both sections specifically exclude grand juries. It is wholly inconsistent with this scheme to say that § 2515 is nevertheless intended to permit grand jury witnesses to raise such a challenge. To do so would be to find that Congress had granted standing to raise a question about which it had then withdrawn a right to notice.
The significance of both “grand jury” and “legislative committee” being excluded should not be minimized, nor the fact that the holding of my two colleagues here must apply pari passu to a congressional committee hearing. If a witness before a congressional committee can trifle with the committee as this petitioner did with the grand jury in this case, and thrust upon the Government the burden of establishing that no electronic surveillance led to the questions asked her — all on the basis of the majority’s interpretation of the 1968 Crime Control Act — this may be an eye opener for those legislators who enacted these statutes.
With all deference to Judge Bazelon’s analysis of the statute, and his effort to interrelate his to that of Judge Adams and Judge Rosenn, I submit that, while recognizing “two difficulties” with Judge *1260Rosenn’s position, he has fallen into error similar to that of those judges. Judge Bazelon first discusses § 2515 separately, finds this a doubtful base for his position, then moves to consider § 2518(10) (a) separately,18 — without reference to § 2518(9), § 2520, § 2510(11) and the Supreme Court’s footnote in Alderman, swpra. Nowhere does Judge Bazelon mention the significance of the omission of both “grand jury” and “legislative committee” from §§ 2518(9) and (10) (a). (Nor did Judges Adams and Rosenn.)
When it is remembered that the Senate Report specifically explained, after discussing the “grand jury” omission, “Nor is there any intent to grant jurisdiction to federal courts over the Congress itself” (pp. 1244-1245, supra), and that the Report specifically states more than once that both grand juries and legislative committees are excluded, it is hard to understand Judge Bazelon’s assertion that the Report is “in effect, an amendment to the clear — and contrary — language of the statute.” Nor is his reference to the Report’s “effort to overturn prior judicial decisions” sustainable. The Report is replete with citation of decisions and reiteration of such phrases as “reflects existing law,” “no intention to change * * * to press the scope of the suppression role beyond the present search and seizure law” (pp. 1244-1245,
Another section of the 1968 Crime Control Act throws light on the congressional intent not to confer a right on a nondefendant to challenge the sources of the Government’s evidence before a grand jury or a legislative committee. The Congress did not leave an “aggrieved person,” whether defendant, prospective defendant, or witness, entirely remediless. In my opinion, not only did Congress as clearly and specifically as possible rule out the use of the exclusionary rule in a grand jury or legislative committee proceeding, as shown above, but under § 2520, Recovery of civil damages authorized, it did provide alternative relief: supra) ,19
Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be entitled to recover from any such person—
*1261(a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;
(b) punitive damages; and
(c) a reasonable attorney’s fee and other litigation costs reasonably incurred.
A good faith reliance on a court order or on the provisions of section 2518(7) of this chapter shall constitute a complete defense to any civil or criminal action brought under this chapter.
Congress did not intend to do a vain thing in providing a remedy for petitioner Evans and others similarly situated; it meant for the remedy to be utilized. For the Senate Report states: “The scope of the remedy is intended to be both comprehensive and exclusive, but there is no intent to preempt parallel State law.” It further added, ‘‘Injunctive relief, with its attendant discovery proceedings, is not intended to be available (Pugach v. Dollinger, 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678 (1961)).”20 (Emphasis supplied.)
Another portion of the legislative history illuminates the civil remedy afforded petitioner here. With reference to § 2518(8), “[sjubparagraph (d) places on the judge the duty of causing an inventory to be served by the law enforcement agency on the person named in an order authorizing or approving an interception. * * * Through its operation all authorized interceptions must eventually become known at least to the subject. He can then seek appropriate civil redress, for example, under § 2520, discussed below * * 21 Under the statutory scheme of regulating wiretapping, all wiretapping must ultimately be revealed; if it has been unauthorized or in any way unlawful, the person whose communication was intercepted has been afforded a civil remedy which the Senate Report specifies “is intended to be both comprehensive and exclusive.”
This, coupled with §§ 2518(9) and 2518 (10) (a) specifically omitting “grand jury” and “legislative committee” from a list of proceedings in which a motion to suppress may be made, and the legislative history stating explicitly that such omission was intended and that neither a grand jury nor a legislative committee is included as a proceeding in which such a motion can be made, leads inexorably to the conclusion that a mere witness such as petitioner Evans here, who has been granted comprehensive transactional immunity, has no standing whatsoever to refuse to answer questions in the grand jury on the ground that any electronic surveillance was in violation of law.
B.
All of the Court of Appeals decisions since the enactment of the 1968 Crime Control Act, with one exception, so hold.
The Ninth Circuit has had occasion to speak directly on the matter three times.22 In Carter v. United States23 *1262the Ninth Circuit had before it challenges by witnesses to the investigation conducted by the grand jury in regard to possible violations of 18 U.S.C. §§ 2101 and 2102, likewise involved in the case at bar. The Ninth Circuit held that each appellant was before the grand jury as a witness, not under indictment, not accused, and had been granted immunity. Hence in his capacity as a witness, he lacked standing to question the constitutionality of the statute (Blair v. United States).24 He was not entitled to raise objections of incompetency or irrelevancy such as a party might raise (Nelson v. United States).25 Finally, of direct relevance to the case at bar, the court held on the allegation “that the questions asked appellants were based upon such wiretapping, the assumption does not help appellants. As witnesses, they have no standing to question the source of the government’s information. It will be time enough to do that if any of them should ever become a defendant, a most unlikely event in view of the immunity granted them.” 26
In the consolidated cases of United States v. Gelbard and United States v. Parnas27 the appellants relied on both the Fourth Amendment ground and on a construction of the statute here involved. The witnesses refused to answer any questions based on information gained by the Government from wiretapping. The Ninth Circuit cited Carter in its holding that:
A witness before a grand jury lacks standing to challenge a statute on constitutional grounds unless the statute directly bears upon his privilege against self-incrimination. * * * Section 2518 is not in that category.
It appears to be settled that a witness in a grand jury proceeding has no right to resort to a court to secure authoritative advance determination concerning evidentiary matters that arise, or may arise, or to exclude evidence to be used in such a proceeding. Cobbledick v. United States, 309 U.S. 323 [60 S.Ct. 540, 84 L.Ed. 783] (1940); Costello v. United States, 350 U.S. 359 [76 S.Ct. 406, 100 L.Ed. 397] (1956) and Lawn v. United States, 355 U.S. 339, [78 S.Ct. 311, 2 L.Ed.2d 321] (1958).28
And in regard to the contention on the construction of the statute here involved, the court stated, “[W]e agree with the Fifth Circuit’s decision in Dudley v. United States * * *. ‘that nothing in the Omnibus Act, particularly § 2518(10) (a) created a statutory exception which would permit a preindictment motion to suppress evidence that might be present*1263ed to the grand jury.’ ” 29 The Ninth Circuit further relied on portions of the legislative history in regard to §§ 2518 (10) (a) and 2518(9), discussed under A above.
In the last of the trilogy, Bacon v. United States30 the Ninth Circuit apparently considered the ground well plowed and the law well settled, dismissing petitioner’s allegations “that the information obtained by illegal wiretaps led to her being subpoenaed and was used in framing questions put to her” with a reference to a rejection of an identical contention in Gelbard and Pamas, whose Petition for Rehearing had been denied the day before Bacon was decided (24 June 1971).
In these cases in the Ninth Circuit there were seven different judges involved in Carter, Pamas, and Bacon, plus three different District Judges,31 all of whom without difficulty reached the same conclusion on the issues and fact situations identical with those in the case at bar.
Nor did the three judges of the Fifth Circuit who considered the same issue in Dudley v. United States 32 have any difficulty in reaching the same conclusion: “We agree with the district court that nothing in the Omnibus Act, particularly § 2518(10) (a), created a statutory exception which would permit a pre-indictment motion to suppress evidence that might be presented to a grand jury, much less an exception permitting an appeal from the denial of such a motion. The legislative history of the Act supports this conclusion.”33
In fact, not one of the ten Circuit Judges or five District Judges who had heard and passed on this issue had any difficulty holding that a witness before a grand jury had no standing, either under the Fourth Amendment or under the 1968 Crime Control Act, to raise any question as to the source of the Government’s evidence, illegal wiretapping or not, until the Third Circuit considered the case of Sister Joques Egan.34 As Judge Bazelon carefully footnotes: “[T]he court’s holding is simply that § 2515, properly interpreted, precluded a finding of contempt in the situation presented by that case” — and this holding, the only portion of the 62 pages of opinion receiving the vote of five of the seven judges participating, comprises exactly two typewritten pages. Judge Rosenn’s separate concurring opinion received the vote of three other judges, and may likewise be taken as the opinion of the majority of the court.
The two-page holding of the Third Circuit opinion took § 2518 as a reenactment of old § 605 of the Communications Act of 1934, which had been held in Nardone v. United States 35 to call for the exclusionary rule on wiretap evidence. In this portion the Third Circuit opinion did not discuss the implications of other sections of the same 1968 Crime Control Act which clearly must be read with § 2515, as both the content of the statute itself and the legislative history discussed above clearly demonstrate. Judge Rosenn’s concurring opinion, joined in by three other judges, described the holding of the court thus: “I believe that, regardless of the interpretation accorded § 2518(10) (a), the aggrieved person should be able to stand mute and, in the event of a subsequent civil contempt proceeding, raise the unequivocal prohibition of Section 2515 as a defense to a finding of contempt, unless the prosecutor can show an untainted independent *1264basis for the questions sought to be asked. This is the rule of this case.” 36
With all due deference to the ingenious suggestion that a witness does not need to make a motion to suppress under § 2518(10) (a) or the Fourth Amendment, all the witness really needs to do is to stand mute, a procedure followed by petitioner Evans here, I venture to suggest that this rationale seeking to avoid the language of the statute and its legislative history may be subject to two flaws. First, this position would seem to slide the witness over to a Fifth Amendment ground for his refusal to answer, rather than rest on the Fourth. To stand mute and decline to answer rather than move to suppress or to bar testimony on the ground it is derived as the fruit of an illegal wiretap, smacks more of the Fifth than it does of the Fourth Amendment. The witness-petitioner Evans in the case at bar, as in Egan, has been granted complete transactional immunity protecting her from any subsequent prosecution, thus undercutting any ground of objection based on the Fifth Amendment.
A second flaw may be that while the witness-petitioner Evans, like the witness-petitioner Egan, is a witness in a criminal investigation by a grand jury, the same line of reasoning would apply if the witness standing mute were a witness called at trial by a defendant.37 If the witness has an individual personal right on either the Fourth or Fifth Amendment, it applies in all proceedings, whether the witness’ testimony is sought by the prosecution or by the defendant. In that event, what happens to a defendant’s Sixth Amendment constitutional right to have compulsory process for testimony? All private wiretapping is now illegal, and whether the alleged wiretapping was illegal government or private action, under the construction of the statute advocated by the panel majority here, the witness could assert his personal rights and decline to answer.
Although not directly in point, one more expression of views (referred to by the Ninth Circuit in both Caldwell and Weinberg, note 22, supra) should be noted as having considerable relevance here. In Garland v. Torre 38 Judge (now Mr. Justice) Stewart was weighing rights under the First Amendment against the obligation of a witness to testify. While the panel majority has not considered any First Amendment rights to be involved here, I would think that the rights under no amendment transcend those embodied in the First, hence Mr. Justice Stewart’s comments may put the issue here in perspective. He said,
But freedom of the press, precious and vital though it is to a free society, is not an absolute. What must be determined is whether the interest to be served by compelling the testimony of the witness in the present case justifies some impairment of this First Amendment freedom * * *
* * * Freedom of the press, hard won over the centuries by men of courage, is basic to a free society. But basic too are courts of justice, armed with the power to discover truth. The concept that it is the duty of a witness to testify in a court of law has roots fully as deep in our history as does the guarantee of a free press. “A* if if
Without question, the exaction of this duty impinges sometimes, if not always, upon the First Amendment freedoms of the witness. Material sacri*1265fice and the invasion of personal privacy are implicit in its performance. The freedom to choose whether to speak or be silent disappears. But “[t]he personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public.” Blair v. United States * *.
If an additional First Amendment liberty — the freedom of the press — is here involved, we do not hesitate to conclude that it too must give place under the Constitution to a paramount public interest in the fair administration of justice.39
I do not hesitate to conclude that the Government in the public interest has a right to the testimony of this witness, petitioner Evans, and that there is nothing whatsoever expressed by Congress in the 1968 Crime Control Act which was intended to override this “paramount public interest in the fair administration of justice.”
C.
One related statute remains to be considered. The majority opinion seems to assume (no authority is cited) that the witness-petitioner’s “mere assertion that an unlawful interception had been conducted” 40 against her and the organizations with which she had been associated is sufficient to “trigger” the govern-merit’s obligation under 18 U.S.C.A. § 3504(a) (1) (Supp.1971), first, to ascertain, and then to come forward and reveal any and all wiretaps involving the petitioner. Such an unsupported assertion, however, does not qualify as a “claim” as required under § 3504(a) (1). A “claim” clearly entails more than, as here, a “mere assertion” of illegality.
The majority’s outright assumption of the equivalence in meaning of the terms “claim” and “mere assertion”, without reference to any authoritative supporting evidence, demonstrates the fragility of petitioner’s ease. If their assumption is found to be erroneous, then petitioner’s case must fall without more, since petitioner simply failed to make her case in the trial court. That the majority opinion itself recognizes the critical import of this assumption is evident from language throughout the opinion reiterating my colleagues’ unsupported assertion of the validity of petitioner’s unsupported assertion.41
The meaning of the term “claim” as it is used in the 1970 statute, is illuminated by the legislative history accompanying it. This history reveals a Congressional desire for specificity. Congress’ Special Findings, requiring that claims that evidence was obtained by the exploitation of unlawful acts be of sufficiently recent vintage (five years or less) in order that there be some degree of certainty as to *1266the unlawful source of such evidence,42 indicate a Congressional intent that such alleged unlawful acts must therefore be set forth. In addition where as here, the petitioner has been granted immunity and thus cannot be a defendant in any prosecution arising out of this or any related case and where she is a witness, the requirement that she plead more specifically her allegations of illegality can work no hardship on her and can only conform to the intent of the 1970 statute. If the witness is unable to state a single fact or ground of suspicion, as is the situation here, then all the world — including even my two colleagues —must know that she is making up a story out of whole cloth.
Under this statute there are, in effect, two requirements for raising a “claim”: first, the petitioner must have standing to challenge the allegedly unlawful conduct. This would require the petitioner to plead, with at least some degree of specificity, his relation to the allegedly unlawful event and its harmful effect on him. In the instant case the witness-petitioner, by her mere assertion that illegal electronic surveillance has been conducted against her and the organizations with which she has been associated, with no supporting allegations or proof, does not specify her particular relation to such surveillance nor does she specify what difficulties, constitutional or otherwise, it creates for her. While under the Federal Rules of Civil Procedure, “facts” as such need not be pleaded,43 “ * * * a short and plain statement of the claim showing that the pleader is entitled to relief * * *” is required by Rule 8(a) (2). As Mr. Justice Black stated for a unanimous Court in Conley v. Gibson, “ * * * all the Rules [Fed.Rules Civ. Proc.] require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” 44
The witness-petitioner here also fails to specify how she is aggrieved, as required to establish standing, by the employment of evidence allegedly obtained from unlawful acts of electronic surveillance. As a witness and having been granted immunity from prosecution in any case arising out of this investigation or in any related case, the petitioner can suffer no adverse legal or penal consequences from the use of such evidence by the grand jury here. The legislative history accompanying 18 U.S.C.A. § 3504(a) (1) (Supp.1970) is relevant in this regard in that it speaks in terms of defendants and an adversary context, not, as here, in terms of witnesses before a grand jury or in any other proceedings;
Title VII [§ 3504] intends to limit disclosure of information illegally obtained by the Government to defendants [emphasis added] who seek to challenge the admissibility of evidence because it is either the primary or indirect production of such an illegal act.45
Paragraph (1) [of § 3504(a)] provides that upon a claim by an aggrieved party that evidence is inadmissible because it is the primary product of an unlawful act, or because it was obtained by the exploitation of an unlawful act, the opponent of the claim must affirm or deny the occurrence of the alleged unlawful act. Under this provision, upon a charge by the defendant with standing to challenge the alleged unlawful conduct [emphasis added], the Government would be required to affirm or deny that an unlawful act involving electronic surveillance had in fact occurred.46
In regard to any invasion of the witness-petitioners’ privacy, assuming the *1267occurrence of unlawful electronic surveillance directed against her, as a ground for her being aggrieved, this has already taken place and is insufficient, by itself, to give the witness-petitioner, with her grant of immunity, standing to challenge the admissibility of such evidence before a grand jury investigation directed against others and not her. Whatever interest she may have in preventing the use against others of evidence which she alleges was unlawfully obtained is outweighed by the public interest in the administration of justice, as more fully discussed under III, infra. The Supreme Court observed in Alderman v. United States:
[T]here is a substantial difference for constitutional purposes between preventing the incrimination of a defendant through the very evidence illegally seized from him and suppressing evidence on the motion of a party who cannot claim this predicate for exclusion. * * * The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. * * * But we are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.47
In the instant case, the witness-petitioner merely alleges, in the words of her affidavit filed in the trial court, that “upon information and belief” electronic surveillance has been conducted against her and the organizations (nowhere specified) with which she has been associated. Nowhere does she allege with any degree of specificity the nature of such surveillance or the harmful effects which it might have had upon her. As such, and as a witness, not a defendant, who has been granted immunity from prosecution in any case arising out of this investigation or in any related ease, the witness-petitioner here lacks the requisite standing to qualify as a “person aggrieved by an unlawful search and seizure," as stated in Rule 41(e) of the Federal Rules of Criminal Procedure and as employed by the Supreme Court in Jones v. United States.48 While, as the Court in Alderman admits:
Of course, Congress or state legislatures may extend the exclusionary rule and provide that illegally seized evidence is inadmissible against anyone for any purpose49 * * *. But for constitutional purposes, we are not now inclined to expand the existing rule that unlawful wiretapping or eavesdropping, whether deliberate or negligent, can produce nothing usable *1268against the person aggrieved by the invasion.50
Congress has not done so and did not intend to do so by means of this 1970 statute.51
The second requirement for raising a claim under 18 U.S.C.A. § 3504(a) (1) (Supp.1971) is that the claimant must specify whether the evidence which he alleges is inadmissible is either the primary product of an unlawful act, the illegality of which he must show, or that it was obtained by the exploitation of an unlawful act, the illegality of which he must also demonstrate. This is supported by the legislative history, which states in pertinent part that:
Under paragraph (2) [of § 3504(a)] disclosure of the information shall be required to be made to a defendant who has demonstrated the illegality of the electronic surveillance [emphasis added] (occurring prior to June 19, 1968) and his standing where such information is or ‘may be’ relevant to a claim of inadmissibility. In cases where the electronic surveillance occurred on or after June 19, 1968, disclosure is mandatory where illegality and standing are demonstrated, [emphasis added] 52
The converse would presumably likewise be true: Where illegality and standing have not been demonstrated, disclosure is not mandatory. Here the majority cannot require the government to come forward on the basis of a “mere assertion.”
This accords with the view expressed in Nardone v. Unifed States, in which Mr. Justice Frankfurter, writing for the Court, stated that “[t]he burden is, of course, on the accused in the first instance to prove to the trial court’s satisfaction that wire-tapping was unlawfully employed.” 53 It is also consistent with Alderman v. United States, in which the Court stated that “[t]he United States concedes that when an illegal search has come to light, it has the ultimate burden of persuasion to show that its evidence is untainted. But at the same time petitioners acknowledge that they must go forward with specific evidence demonstrating taint [emphasis added].” 54 While the instant case involves a witness held in civil contempt, 28 U.S.C.A. § 1826 (Supp.1971), the same burden may be said, by analogy, to rest on the petitioner here. Conrad observes with respect to affirmative defenses in civil proceedings “[t]he burden is on one who asserts an affirmative plea or a controverted counterclaim to establish it by appropriate proof. Typical defenses under this rule are * * * illegality. * * * ”55
*1269A like analogy can be found in Rule 12 (b) (6) of the Federal Rules of Civil Procedure. The motion to dismiss for failure to state a claim upon which relief can be granted, as provided therein, which is the appropriate method for testing the legal sufficiency of a complaint, indicates that pleadings which contain mere allegations of illegality are insufficient for going forward. “For the purposes of the motion, the well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law [emphasis added] or unwarranted deductions of fact are not admitted.” 56 The witness-petitioner’s mere allegation of illegality here would therefore not be admitted under this test. “ * * * [M]ere characterization in a complaint of conduct as unlawful does not meet the test of sufficiency.” 57
The witness-petitioner here has thus failed to meet the requirements for raising a “claim” under 18 U.S.C.A. § 3504 (a) (1) (Supp.1971), since she lacks the requisite standing to challenge the allegedly unlawful conduct of which she complains, and she has not even attempted to demonstrate the illegality of the surveillance of which she complains.
III. Exclusionary Rule under the Fourth Amendment
As indicated at the outset, petitioner’s principal reliance is on the 1968 Crime Control Act58 as interpreted by a majority of the Third Circuit in Egan.59 Petitioner treats the Crime Control Act as a statutory extension of the exclusionary rule under the Fourth Amendment. Petitioner concedes frankly that there is no Supreme Court case permitting a nondefendant, or one who is not even a prospective defendant, to challenge the source of the Government evidence before the grand jury.
Before engaging in a brief discussion of those Supreme Court cases under the Fourth Amendment of tangential relevance, it is appropriate to examine the fundamental purpose of the exclusionary rule and the logic of its application here.60
This case, I submit, demonstrates the irrationality of the exclusionary rule at its worst. Petitioner Evans and her battery of counsel are now fighting tooth and nail to prevent her from being compelled to testify before a grand jury inquiring into the conduct of John Doe, Richard Roe and others — concerning which petitioner has been granted complete immunity. Whatever harm has accrued to petitioner has already occurred —as petitioner’s counsel at one point in oral argument inadvertently admitted, but sought hastily to retract. If there has been an illegal interception, the contents of it are now irretrievably within the ken of government agents. Investigative leads from such interception have doubtless long since been followed up. What the Government now seeks is to bring relevant portions of this information, either that obtained from leads or possibly even from the conversation of the petitioner (although this is not indicated by the questions asked), to the consideration of that venerable public institution, the grand jury. Petitioner now invokes the exclusionary rule of the Fourth Amendment, not for her own protection and for her own vindication, but to block the prosecution of John Doe, et al. How does the application of the exclusionary rule to block the investigation of John Doe vindicate the rights of the witness-petitioner Evans ?
*1270Nor can she contend that her appearance before the grand jury will subject her to indignity or additional harm. Whether the electronic surveillance— there is not a shred of evidence there was any — of petitioner was authorized or not, the intrusion into petitioner’s privacy was the same. If any there was, it has already occurred, and now her testimony before the grand jury will be no more than “one of the duties which the citizen owes to his government [by supporting] the administration of justice by attending its courts and giving his testimony whenever he is properly summoned,” in the words of Chief Justice Hughes.61 On which Mr. Justice Stewart commented, “Material sacrifice and the invasion of personal privacy are implicit in its performance.” 62
If petitioner Evans can show herself an aggrieved person under § 2518(10) (a) in a civil action for damages under § 2520, by reason of unauthorized illegal wiretapping by any government agent, then she has her remedy (said by the Senate Report to be comprehensive and exclusive), and presumably her monetary damages will be awarded in an amount sufficient to compensate her for any intrusion into her privacy which may have occurred. Of what possible advantage is it to petitioner Evans to block the Government’s investigation of John Doe? What satisfaction does the witness obtain? Does the witness obtain the satisfaction of retaliation against government authority, because of her suspicion she has been subjected to electronic surveillance, by blocking the possible prosecution of John Doe, et al.? Is this why the witness-petitioner Evans here is not interested in the civil action for monetary damages provided by the Congress to be exclusive and comprehensive under § 2520?
Bear in mind that the Fourth Amendment itself provides no penalty for its violation, the exclusionary rule based on it is 100% judge-made beginning in the Supreme Court in 1914, the extension of the exclusionary rule to bar the prosecution of John Doe by sustaining the witness-petitioner Evans’ alleged right not to testify certainly does not make restitution to the witness Evans in any way, and to the extent she seeks to invoke the traditional rationale for suppression of evidence, that of deterring future official misconduct, the decision whether or not to apply exclusionary sanctions does not turn on any considerations of vindication of her personal rights but rather on a judicial evaluation of the effectiveness of extending exclusionary sanctions in achieving the desired deterrence. Here, even apart from the notorious ineffectiveness of the exclusionary rule as a deterrent, the exercise of this sanction would, in any event, have little deterrent effect on investigative agency conduct now that electronic surveillance under court order has been specifically authorized by statute. A far more logical and appropriate remedy for the witness-petitioner Evans would seem to be a civil action for damages-which would bring her restitution, and at the same time permit the public to have the benefit of her evidence before the grand jury against John Doe, et al. This is, in my judgment, what the Congress had in mind when it provided for the civil remedy for damages under § 2520 and said that this was to be “both comprehensive and exclusive” and that “[i]njunctive relief * * * ' is not intended to be available.” 63
As the Chief Justice of the United States has recently observed, “If an effective alternative remedy is available, concern for official observance of the law does not require adherence to the Exclusionary Rule. Nor is it easy to understand how a court can be thought to endorse a violation of the Fourth Amend*1271ment by allowing illegally seized evidence to be introduced * * * if an effective remedy is provided against the government.” Bivens v. Six Unknown Named Agents.64 Here, the Congress has carefully provided a remedy in the form of civil damage actions. It therefore seems anomalous to me, in the face of the history of the ineffectiveness of the exclusionary rule in accomplishing its objective of deterring unlawful official conduct, so amply documented by Chief Justice Burger in Bivens, for this court to strain to extend the suppression remedy in an area where Congress itself has refused to do so and has plainly provided an alternative remedy.
Turning to other Supreme Court cases under the Fourth Amendment, to my mind the most relevant to the present controversy is Alderman v. United States,65 the only Supreme Court decision discussing the 1968 Crime Control Act, Title III. Where the petitioner was seeking to exclude evidence against himself as a defendant, but the evidence had been seized from a third party, the Supreme Court declined to extend the exclusionary rule:
What petitioners appear to assert is an independent constitutional right of their own to exclude relevant and probative evidence because it was seized from another in violation of the Fourth Amendment. But we think there is a substantial difference for constitutional purposes between preventing the incrimination of a defendant through the very evidence illegally seized from him and suppressing evidence on the motion of a party who cannot claim this predicate for exclusion.66
In Alderman there was thus something of a triangle between (1) the government agency’s action in seizing the evidence, (2) the person from whom the evidence was seized, and (3) the defendant moving to suppress the evidence. The Supreme Court declined to extend the exclusionary rule in this triangular situation, distinguishing it from what might be termed the straight-line or reciprocal situation in which the government agency seized the evidence illegally from the defendant himself and then sought to use against him the “very evidence illegally seized from him.” 67
In the case at bar we have another triangular situation: (1) the government agency’s action in allegedly unauthorized electronic surveillance, (2) as a result of which information was obtained from petitioner, but (3) the use of the evidence against a third party, John Doe (not the petitioner). On a parallel line of reasoning here, I submit that the court should refuse to suppress the evidence obtained by a government agency, from petitioner, for use against a third party, just as in Alderman the Supreme Court declined to suppress evidence obtained by the government agency, from a third party, for use against the defendant. Whatever rights may be conferred by the statute on a witness at trial, we should not extend the exclusionary rule on a Fourth Amendment ground here in our triangular situation, just as the Supreme Court refused to extend the exclusionary rule in Alderman in the triangular situation there.
Alderman has another relevance to the case at bar. In justifying its refusal to extend the exclusionary rule under the Fourth Amendment, the Supreme Court said: “We do not deprecate Fourth Amendment rights * * * nor should those who flout the rules escape unscathed. In this respect we are mindful that there is now a comprehensive statute making unauthorized electronic sur*1272veillance a serious crime,” 68 and at that point footnoted the Omnibus Crime Control and Safe Streets Act of 1968, saying, “Not only does the Act impose criminal penalties upon those who violate its provisions governing eavesdropping and wiretapping, * * * but it also authorizes the recovery of civil damages by a person whose wire or oral communication is intercepted, disclosed, or used in violation of the Act,” citing § 2520 discussed above. In the very next footnote the Supreme Court in Alderman observed that Congress had not extended the exclusionary rule by this statute, and that “[t]he Act’s legislative history indicates that ‘aggrieved person,’ the limiting phrase currently found in Fed.R.Crim.Proc. 41 (e) should be construed in accordance with existent standing Rules. See S. Rep.No.1097, 90th Cong., 2d Sess., at 91, 106,”69 precisely those sections of the legislative history I have discussed above.
Hence, from Alderman I derive the assurance that not only would the Supreme Court decline to extend the Fourth Amendment-based exclusionary rule to this particular triangular situation comparable to that in Alderman, but likewise the Supreme Court looks to the Crime Control Act of 1968 as providing an alternate remedy, i. e., civil damages, to that of the exclusionary rule. Further, I conclude from Alderman that “aggrieved person” is equivalent to “person aggrieved” under Rule 41(e), and that this witness-petitioner Evans is not a party before this grand jury, because there are no parties before grand juries.
Petitioner’s counsel stated at oral argument that although there was no Supreme Court case squarely holding that a nondefendant or a mere witness could challenge the source of government evidence before the grand jury, yet Silverthorne Lumber Company, Inc., et al. v. United States 70 was the closest ease in point. In brief petitioner asserts: “Silverthorne * * * explicitly held that a grand jury witness could not be compelled to comply with a subpoena derived in any part from the fruits of a Fourth Amendment violation.” Silverthorne was given subpoenas duces tecum to produce certain corporate records before a grand jury which was investigating him and his father. The reason that Silverthorne did not have to comply, and that the corporation was not required to produce the books and records which would serve to incriminate father and son personally, was not derived from their standing as grand jury witnesses. The reason was that, prior to the subpoenas challenged, their personally owned corporation had been the victim of a search and seizure “without a shadow of authority.” On the application of the Silverthornes, the documents were held to have been unlawfully seized and were ordered returned to their rightful owner. After having acquired the documents illegally, having been forced to return them to their lawful owner, the Government then sought to profit from the evidence originally illegally obtained by subpoenaing the individual witness to produce the documents. This the Supreme Court refused to permit.
Since Silverthorne was decided in 1920, it would be astonishing some 51 years later to find that this case established the law that a mere grand jury witness had standing to challenge the source of government evidence allegedly derived from an illegal search and seizure. The Silverthornes had established the illegality of the seizure of the evidence in an independent proceeding prior to the new grand jury subpoenas duces tecum, the Silverthornes were the object of the grand jury’s investigation, and they had certainly been granted no immunity as has the petitioner Evans here. The witness-petitioner Evans is in a *1273completely different category in all three respects. If Silverthorne has meant for 51 years all that petitioner now says it does, long since we would have had witnesses refusing to testify because of illegal wiretaps or for other searches and seizures alleged illegal under the Fourth Amendment.
Judge Bazelon’s reliance on Silverthorne (p. 1246) is a reliance on a dictum in Silverthorne, not on its holding. This dictum — “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all” — if followed, would make the exclusionary rule of the Fourth Amendment of universal applicability in every proceeding under all circumstances. This the Supreme Court has not done, it has not followed the dictum of Silverthorne; Costello v. United States,71 Lawn v. United States,72 United States v. Blue73 and Alderman v. United States 74 are but some of the holdings to the contrary.
Nor do I understand how we “avoid significant constitutional difficulties (Judge Bazelon, p. 1247) by reading this statute “to permit an attack by a witness on the admissibility of evidence seized in violation of the fourth amendment,” i. e., to extend the exclusionary rule to a situation which even petitioner’s counsel admits is not directly covered by any Supreme Court decision in his favor. On the statute as I interpret it, there is nothing whatsoever inconsistent with any previous holding of the Supreme Court, and the legislative history shows that the Congress thought likewise. The Supreme Court decisions declining to extend the exclusionary rule, of which Alderman, supra, is only the most recent, sustain this view.
Cases subsequent to Silverthorne make clear its inherent limitations apparent from the recital of the operative facts above.
In United States v. Blue,75 Justice Harlan wrote for a unanimous Court:
Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial.76
To which was footnoted:
It does not seem to be contended that tainted evidence was presented to the grand jury; but in any event our precedents indicate this would not be a basis for abating the prosecution pending a new indictment, let alone barring it altogether. See Costello v. United States, 350 U.S. 359 [76 S.Ct. 406, 100 L.Ed. 397]; Lawn v. United States, 355 U.S. 339 [78 S.Ct. 311, 2 L.Ed.2d 321] ; 8 Wigmore, Evidence § 2184a, at 40 (McNaughton rev. 1961).
Hence, evidence obtained illegally, even in violation of a constitutional right, may be used before a grand jury. The Court refused to abate the prosecution, which it would have done if evidence which Blue could have suppressed before the grand jury had been used. Blue had no such right to move to suppress any evidence before a grand jury, and neither does this witness-petitioner here.
A mere witness given immunity from prosecution, as petitioner here, logically stand in a weaker position than an indicted defendant, particularly when the *1274rationale of the Court’s rule in Blue is examined. There Blue had sought to bar the prosecution altogether, on which the Court’s opinion commented: “So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree, interference with the public interest in having the guilty brought to book.” 77 The Court’s wariness of extending the exclusionary rule was again underscored by Justice White in Alderman: “Neither those cases nor any others hold that anything which deters illegal searches is thereby commanded by the Fourth Amendment.” 78 Far from extending the exclusionary rule, I believe we should heed the advice of Chief Justice Burger that, even apart from the existence of some alternative remedy for illegal searches and seizures, “the time has come to re-examine the scope of the Exclusionary Rule and consider at least some narrowing of its thrust so as to eliminate the anomalies it has produced.” 79
Extending the exclusionary rule on a Fourth Amendment ground to apply to the witness-petitioner would have the same damaging impact feared by Justices Harlan and White, and described at length by Chief Justice Burger, as what has already occurred in these grand jury proceedings makes crystal clear. The majority ruling here, giving witnesses such as these a right to challenge and litigate at the grand jury phase the source of the Government’s evidence, a new right not intended by Congress and never known before Egan, adds yet another tool to the expanding arsenal of legal weapons to which obstructionist elements may resort to frustrate the ends of justice. I would affirm the judgment of the District Court holding the witnesses in civil contempt until they answer the grand jury’s questions.
. In my view this case is one which under ordinary circumstances properly should have been considered by this court en banc, as was done by the Third Circuit in Egan. But because, as noted by Judge Bazelon, we are obligated to decide this ease by 23 July, because this is the season when some of the judges are on their annual vacation, and because of a realistic appraisal that with a split in opinion now between the Fifth and Ninth Circuits on one side and the *1253Third and this Circuit on the other, it is highly likely that the Supreme Court will decide these issues, no judge asked for en lane consideration. Indeed, no judge had an opportunity, as the order and opinions are being issued on the day the statutory period expires.
Because of the time and season factors, the opinions herein were written on the basis of an informal exchange of views, with no opportunity for a careful study and reconciliation of differing opinions as we customarily have.
The same limitations have required my omission of any detailed discussion of the facts in Miss Fishlowitz’s case. Suffice it to say that not only petitioner here but also two other witnesses, Marlene Fishlowitz and Jerry Coffin, called at about the same time as the petitioner and questioned by the grand jury regarding the Mayday activities used the same tactics of frustration — requesting to consult with their attorney after each question and ultimately refusing to answer on the same primary ground, i. e., that they believed their subpoenas had been issued as a result of illegal electronic surveillance. In fact, the grand jury transcript shows witness Coffin’s objection phrased so closely to this petitioner’s — quoted at note 2, infra — that it is a fair inference they were reading from the same prepared statement.
Apparently in recognition of the concertedness of these witnesses’ behavior, the Justice Department has stipulated with counsel for Miss Fishlowitz (who is also counsel for this petitioner) that the disposition of this case will determine that of the contempt case against her. Likewise, the Justice Department has so far apparently refrained from proceeding against Coffin, despite his refusal to answer, pending resolution of this case — a resolution, I might add, that is yet nowhere in sight.
. During part of the time she was absent on 15 June she was present with her counsel at a hearing before Chief Judge Sirica, which began at 2:45 p. m. and concluded at 3:40 p. m. Prior to that time she had gone to the courtroom of District Judge Parker. On 8 June she alleged in the grand jury room that during part of the time she had been absent she had been to the Court of Appeals, which ordered her return to the grand jury room.
The complete text of Mrs. Evans’ objection was:
I cannot answer that question because on advice of counsel, the answer might tend to incriminate me, and upon information and belief, my subpoena was issued as a direct or indirect result of illegal electronic surveillance, and my belief that the question has been framed in whole or in part from information obtained directly or indirectly from illegal electronic surveillance.
And I further cannot answer on the grounds that this subpoena and Grand Jury questioning violate my rights of speech and association, my right of privacy, my right to have counsel present with me in the Grand Jury room, my right to adequately consult with counsel after each question.
*1254And further, that this Grand Jury is abusing its function in that it’s conducting an investigation for the Federal Bureau of Investigation, and that the Grand Jury, an aspect of the judicial branch of the Government, is performing the function of the executive branch of Government.
And that my rights under the due process clause of the Fifth Amendment are violated, and that the Grand Jury questioning has been conducted in an abusive manner by the attorneys of the Justice Department.
. Omnibus Crime Control and Safe Streets Act, Title III; 18 U.S.C. §§ 2510-2520 (1968).
. Organized Crime Control Act of 1970, Title VII, Part B; 18 U.S.C. § 3504 (1970).
. 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).
. H.R.Rep.No.1549, 91st Cong., 2d Sess. 82 (1970).
. Id., at 92.
. Id.
. Id.
. I am cognizant of the views expressed by Judge Rosenn and three others judges in the Third Circuit, to the effect that there is no real burden on the Government to come up with a simple “yes” or “no” answer in regard to the existence of wiretapping and supply any called for data. (Egan, 450 F.2d at 199) There is no evidence that Judge Rosenn and his colleagues considered the empirical data *1256oited in this opinion, or indeed any data on previous experience at all. Nor do my two colleagues here.
This view was sharply challenged by Judge Gibbons and Judge Aldisert in dissent, (at 450 F.2d 221) They further noted:
This assumption, supported by no empirical foundation, undermines the only public policy which could possibly be weighed in favor of the witness privilege. By hypothesis the invasion of privacy about which a given witness complains has already occurred. The only public policy consideration favoring imposition of an evidentiary sanction on the government is that such a sanction is needed to deter anticipated future violations. (Footnote omitted.) If violations are, as the majority opinion assumes, likely to be rare, how does the need for the sanction outweigh both the need for the testimony and the harm of litigating third party claims?
. 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).
. 18 U.S.C. §§ 2510-2520 (1968).
. S.Rep.No.1097, 90th Cong., 2d Sess. 96 (1968). Because of the origin of the Act and the parliamentary procedure under which it was considered, there was no House Report on these relevant portions of the Act.
. Id.
. Id., at 106.
. Id., at 105.
. With some degree of hesitancy, Judge Bazelon would appear to accept this position of the petitioners as an alternative holding since he states in his opinion that “By relying on the flat prohibition of § 2515, the majority could avoid decision on the interpretation of § 2518(10) (a)”, and “ * * * while I am inclined to accept the majority’s interpretation of § 2515, I believe that § 2518(10) (a) offers a stronger ground * * * ”, and “Judge Rosenn builds a substantial case in favor of the interpretation of § 2515 urged by appellants Evans and Eislilowitz.” But then Judge Bazelon “comment [s], however, on two difficulties that he did not consider.” Judge Wright would forthrightly accept the interpretation given § 2515 by Judge Rosenn’s concurring opinion in Egan. Both interpretations overlook, as I have pointed out above, the overall scheme of Title III. Judge Bazelon seems to recognize this since the “two difficulties” relate to viewing the statute “as a whole”.
. I respectfully submit that the approach favored by Judge Bazelon, interpreting as it does § 2518(10) (a) in vacuo while at the same time seeking to minimize the effect of any contrary legislative history, is not only subject to that same criticism in that it does not even attempt to harmonize the effects of §§ 2515, 2518(9), 2518(10) (a), and 2520 — all pertinent sections of the same statute which should be read together — but also patently ignores Congress’ express purpose in expounding at length in the Senate Report on the provisions of Title III. The legislative history to Title III begins as follows :
Because of the complexity in the area of wiretapping and electronic surveillance, the committee believes that a comprehensive and in-depth analysis of title III would be appropriate in order to make explicit congressional intent in this area. S.Rep.No.1097, 90th Cong., 2d Sess. 88 (1968); (Emphasis supplied.)
Certainly no legislative history has the same force as the statute itself. No one argues that. What any legislative history, and in particular this legislative history regarding the complicated area of electronic eavesdropping seeks to do is explain what Congress intended the words of the statute to mean — an intent I believe we are bound to follow.
. Judge Bazelon mentions, (pp. 1245-1246) the Senate Report’s use of the qualifying word “normally” in stating “there is no limitation on the character of evidence that may be presented to a grand jury, which is enforceable by an individual,” (footnotes 19 and 23) and then refers to witnesses’ “constitutional, statutory, or common law privilege.” As Judges Gibbons and Aldisert made clear in Egan (450 F.2d pp. 225) — “Congress was well aware of the distinction between exclusionary rules of evidence and witness privileges” — these are personal privileges easily determinable by a limited inquiry as to status or relationship, e. g., husband-wife, attorney-client, or the privilege against self-incrimination.
. S.Rep.No.1097, note 13, supra, at 107.
. Id., at 105.
. Two other Ninth Circuit cases during this same period bear peripherally on the instant case, but were not decided on any construction of the statute here involved. In Caldwell v. United States, cert. granted, 402 U.S. 942, 91 S.Ct. 1616, 29 L.Ed.2d 109 (1971), 434 F.2d 1081 (1970), the District Court had denied the motion of appellant to quash the grand jury’s subpoena on the ground that the appellant lacked standing to raise the Fourth Amendment contention. Because of its disposition of Caldwell under the First Amendment, the court did not reach the Fourth Amendment ground. The court held that* the public’s First Amendment right to be informed would have been jeopardized by requiring a reporter to submit to secret grand jury interrogation, unless the Government had prior to his attendance demonstrated a compelling need for the witness’ presence. Thus a witness was excused attendance, but on the ground of the public’s right right to know. This might be compared to the public’s right to know through the historic grand jury inquiry as to whether criminal acts had been committed in the case at bar.
*1262United States v. Weinberg, 439 F.2d 743 (1971), involved a grand jury investigation of a violation of 18 U.S.C. § 2101. The witnesses who had been granted immunity under the statute, also involved here, did not claim that any construction of the statute itself gave them a right to refuse to answer the grand jury questions; but instead relied upon Fourth Amendment constitutional grounds. The Ninth Circuit dismissed this contention by saying,
[C]ompelled grand jury testimony is neither a search for, nor seizure of, oral statements in the sense envisioned by the Fourth Amendment. * * *
“The grand jury does not need to have probable cause to investigate; rather its function is to determine if probable cause exists. And if probable cause is not required to investigate, it follows that probable cause is not required to make the preliminary showing necessary to call a witness whose testimony may shed light on criminal activity which the grand jury must investigate if the national inerest is to be effectively served.” 439 F.2d, at 749.
. 417 F.2d 384 (9th Cir. 1969), cert. denied, 399 U.S. 935, 90 S.Ct. 2253, 26 L.Ed.2d 807 (1970).
. 250 U.S. 273, 279, 281-283, 39 S.Ct. 468, 63 L.Ed. 979 (1919).
. 201 U.S. 92, 115, 26 S.Ct. 358, 50 L.Ed. 673 (1906).
. 417 F.2d 384, 388 (9th Cir. 1969) (citations omitted).
. 443 F.2d 837 (9th Cir., 1971, rehearing denied 1971).
. Id., at 838.
. Id.
. 446 F.2d 667 (9th Cir., 1971).
. The District Court in Caldwell, note 22, supra, likewise decided the question of the statute and the Fourth Amendment, although the Ninth Circuit explicitly did not in that case.
. 427 F.2d 1140 (5th Cir. 1970).
. Id., at 1141-1142.
. In re Egan, 450 F.2d 199 (3rd Cir. en banc, 1971).
. 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937). See also Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939).
. Note 34, supra, 450 F.2d at 219-220.
. This was pointed out by Judge Gibbons’ dissent in Egm, at 223, and note 5. He answered the argument advanced by the majority opinion here (note 20) by saying: “It is inconceivable that the right of a criminal defendant to compulsory process for the attendance of witnesses guaranteed by that amendment (VI) is subject to the unrestrained power of Congress to create privileges * * * the constitutional interpretation announced in the majority opinion will operate both ways * * * The majority opinion may in the future be cited as authority for congressional authority to erode the compulsory process guarantee.”
. 259 F.2d 545 (2d Cir. 1958), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958).
. Id., at 548-549 (citations omitted).
. Majority opinion, p. 1242.
. Their observations to this effect are as follows:
Since § 3504(a) (1) is triggered, in our view, by the mere assertion that unlawful wiretapping has been used against a party, the government must make the next move if it still wishes to interrogate these appellants, [emphasis added] [Majority opinion, p. 1247]
Congress directed that the government must affirm or deny the use of wiretapping as soon as an aggrieved party makes a “claim * * * that evidence is inadmissible because it is the primary product” of an unlawful wiretap. 18 U.S.C.A. § 3504(a) (1) (Supp. 1971) [emphasis added in majority opinion p. 1249]
The majority also purport to distinguish the decision of the Ninth Circuit in United States v. Gelbard and United States v. Parnas, 443 F.2d 837 (9th Cir. 1971) from the instant case on the grounds that, as they state, “[a]ppellants did not allege in that case that electronic surveillance had been conducted without any prior judicial sanction.” [Majority opinion, p. 1242, n. 12]. This distinction rests on their assumption of the equivalence in meaning of the terms “claim” and “mere assertion.” However the witness-petitioner here nowhere alleges that electronic surveillance has been conducted without any prior judicial sanction. She merely asserts the occurrence of an unspecified illegality.
. Organized Crime Control Act of 1970, Title VII, Part A, Sec. 701; 1970 U.S. Code Cong, and Adm.News, p. 4469.
. 2A Moore’s Federal Practice § 8.13 (1968) (footnotes omitted).
. 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957).
. H.R.No.91-1549, 91st Cong., 2d Sess. p. 4007 (1970).
. Id., at p. 4725.
. 394 U.S. 165, 174-175, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1968). For a more extensive discussion of Alderman and its applicability to the instant case, see III, infra.
. 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1959).
The Court in Alderman v. United States observed that “[t]he ‘person aggrieved’ language is from Fed.Rule Crim.Proc. 41(e). Jones thus makes clear that Rule 41 conforms to the general standard and is no broader than the constitutional rule.” 394 U.S. 165, 173, n. 6, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1968).
. The Court adds in Alderman v. United States that “Congress lias not done so. In its recent wiretapping and eavesdropping legislation, Congress has provided only that an ‘aggrieved person’ may move to suppress the contents of a wire or oral communication intercepted in violation of the Act. Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 221 [18 U.S.C. § 2518 (10) (8) (1964 ed., Supp. IV)]. The Act’s legislative history indicates that ‘aggrieved person,’ the limiting phrase currently found in Fed.Rule Crim.Proc. 41(e), should be construed in accordance with existent standing rules. See S.Rep. No.1097, 90th Cong., 2d Sess., at 91, 106.” 394 U.S. 165, 175-176, n. 9, 89 S.Ct. 961, 968, 22 L.Ed.2d 176 (1968).
. 394 U.S. 165, 175-176, 89 S.Ct. 961, 967, 968, 22 L.Ed.2d 176 (1968).
. Similarly, despite the dictum in the Court’s opinion in Silverthorne Lumber Co. et al. v. United States, 251 U.S. 385 at 392, 40 S.Ct. 182, at 183, 64 L.Ed. 319 (1919), to the effect that “[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all,” the Court has refused to extend the scope of the exclusionary rule to cover every proceeding under all circumstances. As Mr. Justice Harlan stated for the Court in United States v. Blue, 384 U.S. 251, at 255, 86 S.Ct. 1416, 1419, at 16 L.Ed.2d 510 (1965) “[e]ven if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial.”
. H.R.No.91-1549, 91st Cong., 2d Sess. p. 4725 (1970).
. 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939).
. 394 U.S. 165, 183, 89 S.Ct. 961, 972, 22 L.Ed.2d 176 (1968).
. 2 Conrad, Modern Trial Evidence § 934 (1956). With respect to affirmative defenses in criminal proceedings, Conrad states that “[t] hough the burden of proof in a criminal case never shifts from the state, yet, when a distinct substantive matter is relied upon as a defense, the burden of evidence rests on the accused. A defendant relying upon some independent, distinct, substantive matter of exemption, immunity, or defense beyond the essentials of the legal definition of the offense, has the onus of proof as to such *1269matter, notwithstanding that the burden of establishing the corpus delicti is upon the state.” § 935 (footnotes omitted).
. 2A Moore’s Federal Practice § 12.08 (1968) (footnotes omitted).
. Tate v. City of Eufaula, 165 F.Supp. 303 (M.D.Ala.1958).
. Note 3, supra.
. Note 34, supra.
. See view of Judges Gibbons and Aldisert, dissenting in Egan, note 10, supra.
. Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 255, 76 L.Ed. 375 (1932).
. Garland v. Torre, 259 F.2d 545, 549 (2d Cir. 1958), cert. denied, 385 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958).
. S.Rep.No.1097, 90th Cong., 2d Sess. 107 (1968).
. 403 U.S. 388, 414, 91 S.Ct. 1999, 2014, 29 L.Ed.2d 619 (1971) (dissenting opinion).
. 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).
. Id., at 174, 89 S.Ct. at 967.
. Petitioner has never asserted specifically that her suspicion of wiretapping related to government action, but we assume that this is the basis of her alleged fear.
. 394 U.S. 165, 175, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969) (footnote omitted).
. Id., at 175-176, nn. 8, 9, 89 S.Ct. at 967-968.
. 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).
. 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).
. 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958).
. 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966).
. 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).
. Note 73, supra.
. Id., at 255, 86 S.Ct. at 1419.
. Id.
. 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969).
. 403 U.S. 388, 424, 91 S.Ct. 1999, 2018, 29 L.Ed.2d 619 (1971) (dissenting opinion).