(dissenting).
A two-count indictment was returned in the District Court charging the defendants, John Sinclair, Lawrence Robert “Pun” Plamondon, and John Waterhouse Forrest, in the first count with entering into a conspiracy commencing on or about September 1, 1968, and continuing thereafter up to and including November 1, 1968, to bomb by means of dynamite the offices of the Central Intelligence Agency, a facility of the United States Government, in Ann Arbor, Michigan. The second count of the indictment charged Plamondon alone with the substantive offense of damaging the facility on September 29, 1968 by dynamite, all in violation of 18 U.S.C. §§ 371 and 1361.
In its response to the motion filed by defendants for disclosure of the logs of the electronic surveillance, the Government attached an affidavit of the Attorney General stating positively that the wiretaps “were being employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.” He certified “that it would prejudice the national interest to disclose the particular facts concerning these surveillances other than to the Court in camera.”
The District Judge, in his memorandum opinion, stated that the Government had submitted to him for in camera inspection a sealed exhibit containing the he made no finding that the conversations were relevant to any issue in the case or might lead to the discovery of any relevant and admissible evidence. He ordered the Government to produce the logs for inspection by the defendants. He further ordered an evidentiary hearing at the end of the trial to determine the existence of taint in the indictment or in the evidence. This last order would seem to indicate that in the opinion of-the District Judge the logs contained no such disclosure.
The sealed exhibit, which contained logs of the monitored convervations but only a few pages, was examined more than once by the members of this panel. The monitored conversations took place subsequent to the bombing and after the *672conspiracy alleged in the indictment had terminated. They did not relate in any way either to the conspiracy or to the substantive offense charged in the indictment, and would not be relevant or ad-, missible at the trial; nor did they lead to any relevant and admissible evidence.
The surveillance was not directed at Plamondon, nor at any property owned or possessed by him. Disclosure of the dates and the monitored conversations, however, might furnish valuable information to the organization under surveillance as to the activities of the Government. The Government was of the view that a protective order would furnish no protection against disclosure. The • Government sought to prevent disclosure by resisting the motion to produce, and in all probability will decline to comply with the order of the District Court, which would result in the dismissal of the indictment and the defendants would go free.
The fact that the interceptions took place before the indictments were returned is of no consequence. Since the interceptions contained no useful information relative to the conspiracy or bombing, they -could not have assisted in the investigation.
In my opinion, the District Judge could not determine illegality by merely examining the logs. He conducted no evidentiary hearing but postponed it until the end of the trial. In my opinion he abused his discretion by ordering production of the logs.
The District Court interpreted Aiderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), as requiring an adversary proceeding to determine illegality in every case of electronic surveillance, even though critical material may be involved and the issues in the criminal case are not complex. The majority opinion takes the same position. I read Alderman as requiring an adversary proceeding in that case, but not as specifying the procedure to be followed by a District Court in determining illegality.
In my opinion, the interpretation of the District Court ws erroneous. In decisions subequent to Alderman, the Supreme Court clarified any ambiguity which might theretofore have existed by holding that an adversary proceeding and full disclosure are not required for resolution of every issue raised by electronic surveillance. In Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297, Mr. Justice Stewart, in a concurring opinion, stated:
“Moreover,''we did not in Alderman, Butenko, or Ivanov and we do not today, specify the procedure that the District Courts are to follow in making this preliminary determination. We have nowhere indicated that this determination cannot appropriately be made in ex parte, in camera proceedings. ‘Nothing in Alderman v. United States, Ivanov v. United States, or Butenko v. United States, ante, [394 U.S.] p. 165 [89 S.Ct. 961, 22 L.Ed.2d 176], requires an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance.’ Taglianetti v. United States, post, [394 U.S.] p. 316 [89 S.Ct. 1099, 22 L.Ed.2d 302].” (394 U.S. at 314, 89 S.Ct. at 1165)
In my judgment, the Supreme Court in Alderman did not abolish nor intend to impair the traditional use of in camera proceedings which for so many years have been so efficacious in the protection of the rights of litigants. There may be cases involving a multitude of documents and complex issues where an adversary proceeding is required, but such is not the case here. The sealed exhibit contains very few sheets of paper. The issues were not complex. Only Plamondon was charged with the actual bombing on September 29, 1968, and he either did or did not do it.
The precise question was resolved in favor of the Government in United States v. Clay, 430 F.2d 165 (5th Cir. 1970), which involved five logs of electronic surveillance submitted to the District Court for in camera inspection. The Government did not challenge illegality with re*673spect to four of the logs, and they were turned over to the defendant. None of the four related in any manner to the charge in the indictment for violation of the Selective Service laws, and had no bearing on his conviction. The fifth log which “related to the gathering of foreign intelligence was held to be lawful surveillance, reasonable and necessary to the protection of the national interest.”
The District Court in Clay determined this from an in camera inspection of the fifth log and an affidavit of the Attorney General, similar in form to his affidavit in the present case. The Court declined to turn over to the defendant the fifth log. The Court further determined from the in camera inspection and the hearing with respect to the other four logs that the defendant had failed to establish relevancy.
The Court of Appeals in Clay likewise examined the fifth log in camera and agreed with the District Court that the contents of the wiretap were not germane to any issue in the criminal prosecution and that the Court was correct in declining to order its production.
In an opinion written by Judge Ains-worth, the Court held:
“Under the circumstances here, publication of the fifth log to defendant is unwarranted and would be contrary to the national interest, having been obtained in foreign intelligence surveillance. The Court’s in camera examination of the fifth log establishes to our satisfaction that the contents of the wiretap were not germane to any issue in this criminal prosecution and conviction. There has been no use against defendant of the information gained by the Government by the fifth wiretap and the information there obtained would not have been of assistance to the prosecutor in constructing a case against defendant. There is no indication that the information was or could be used in any way against defendant.
“Determination of this case requires that we balance the rights of the defendant and the national interest. The Attorney General, who acts here for the President and Commander-in-Chief, has submitted his affidavit that the fifth wiretap was maintained ‘for the purpose of gathering foreign intelligence information’ and the Attorney General opposed disclosure at the hearing because ‘it would prejudice the national interest to disclose particular facts concerning this surveillance other than to the court.’ The fifth log was submitted by the Government for an in camera examination by the Court, which has been made both here and in the District Court. The rights of defendant and the national interest have thus been properly safeguarded. Further judicial inquiry would be improper and should not occur. It would be ‘intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.’ Chicago & Southern Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948). We, therefore, discern no constitutional prohibition against the fifth wiretap.” (430 F.2d at 171)
The Supreme Court denied certiorari in Clay as to the fifth log (issue number 2 in the Supreme Court) and granted certiorari only on issue number 4 relating to the validity of Clay’s claim to exemption from the draft as a conscientious objector. 400 U.S. 990, 91 S.Ct. 457, 27 L.Ed.2d 438.
In my opinion, the Supreme Court in declining to rule on the constitutional issue merely followed “the traditional practice of this Court of refusing to decide constitutional questions when the record discloses other grounds of decision, whether or not they have been properly raised - before us by the parties.” Neese v. Southern Ry., 350 U.S. 77, 78, 76 S.Ct. 131, 132, 100 L.Ed. 60 (1955).
In Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136, 67 S.Ct. 231, 234, 91 L.Ed. 128 (1946), the Court said:
“This Court has said repeatedly that it ought not pass on the constitutional*674ity of an act of Congress unless such adjudication is unavoidable. This is true even though the question is properly presented by the record. If two questions are raised, one of non-constitutional and the other of constitutional nature, and a decision of the non-constitutional question would make unnecessary a decision of the constitutional question, the former will be decided.”
The Court will wait on a concrete fact situation in order to avoid rendering a series of advisory opinions. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), rehearing denied, 382 U.S. 873, 86 S.Ct. 17, 15 L.Ed.2d 114.
The District Court should have followed the procedure adopted in Clay. Had it done so, it would not have been necessary to rule on the constitutional issues in this case.
Rule 16 of the Federal Rules of Criminal Procedure relating to pretrial discovery permits discovery only of evidence which is relevant and material. The intercepted communications were neither relevant nor material. The rule does not authorize the order entered by the District Court in the present case.
In ruling that the President, acting through the Attorney General, was without constitutional power to utilize electronic surveillance to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government, the District Judge said:
“In this turbulent time of unrest, it is often difficult for the established and contented members of our society to tolerate, much less try to understand, the contemporary challenges to our existing form of Government. If democracy as we know it, and as our forefathers established it is to stand, then ‘attempts of domestic organizations to attack and subvert the existing structure of the Government’ (See affidavit of Attorney General), cannot be, in and of itself, a crime. It becomes criminal only where it can be shown that such activity was accomplished through unlawful means, such as invasion of the rights of others, namely through force or violence.
“The affidavit of the Attorney General of the United States makes no assertion that at the time these wiretaps were installed, law enforcement agents had probable cause to believe criminal activity (e. g. the illegal overthrow of the Government through force or violence) was being plotted. Indeed, if such probable cause did exist, a warrant to search may have properly been issued.”
The established and contented members of our society are required to tolerate peaceful dissent even though they may find it difficult to understand at all times. But they are not required to tolerate, much less understand, plots of discontented members to overthrow the Government by force and violence.
In my opinion, it is the sworn duty of the President under the Constitution, as Commander-in-Chief of the Armed Forces and as Chief Executive, to protect and defend the nation from attempts of domestic subversives, as well as foreign enemies, to destroy it by force and violence. The risk of injury to the Government is just as great whether the attacks are from within or without, and domestic attacks may even be instigated, aided and abetted by a foreign power.
Attacks by domestic subversives and saboteurs may be even more dangerous than those of foreign sources, because of the difficulty of detection of “Fifth Column” activities.1
At a time when our soldiers are fighting on foreign soil and there is turbulence at home, thereby confronting the *675President on two fronts, with many serious, perplexing and complex problems, there rests upon his shoulders a heavy responsibility to protect, not only the fighting men abroad, but also the people at home, from destruction of their Government by domestic subversives.
The legislative and judicial branches of the Government do not have the facilities to cope with the destruction of public buildings by saboteurs. Only the Executive Department of the Government has the facilities and know-how to deal with these intricate problems. When the Chief Executive deems it necessary to gather intelligence information for this purpose he ought not to be required first to make detailed explanations of classified information to a magistrate and procure his consent as a condition precedent to the exercise of his constitutional powers.2
Nor do I think that the Executive has to wait until “the activity of the subversives is accomplished through unlawful means, such as invasion of the rights of others through force and violence.” It is too late to act after there has been a fait accompli.
As former Attorney General Brownell stated:
“It is of course too late to do anything about it after sabotage, assassinations and fifth column activities have been completed.” The Public Security and Wiretapping, 39 Cornell Law Quarterly 205.
As well stated by Chief Justice Vinson in Dennis v. United States, 341 U.S. 494 at 509, 71 S.Ct. 857, 867, 95 L.Ed. 1137 (1951):
“Obviously, the words cannot mean that before the Government may act, it must wait until the putsch, is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.”
In Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948), the Court considered the powers of the President in foreign relations in an opinion delivered by Mr. Justice Jackson, stating:
“The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in ca/mera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the do*676main of political power not subject to judicial intrusion or inquiry.” (333 U.S. at 111, 68 S.Ct. at 436)
See also Cafeteria and Restaurant Workers Union, Local 473, A.F.L.-C.I.O. v. McElroy, 367 U.S. 886, 890, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796 (1942); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-320, 57 S.Ct. 216, 81 L.Ed. 255 (1936); Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726 (1918); In Re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (1895); Totten v. United States, 92 U.S. 105, 23 L.Ed. 605 (1875).
I see no reason why the powers of the President should be any different in dealing with either foreign or domestic subversives; both are equally harmful; both or either could result in the destruction of the Government.
Congress, in enacting Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2511(3), provided exceptions to the warrant requirements of the Act, as follows:
“(3) Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.”
Referring to the exceptions, the Senate Report states:
“The only exceptions to the above prohibition are: (1) the power of the President to obtain information by such means as he may deem necessary to protect the Nation from attack or hostile acts of a foreign power, to obtain intelligence information essential to the Nation’s security, and to protect the internal security of the United States from those who advocate its overthrow by force or other unlawful means.” 1968 U.S.Code Cong. & Admin.News, p. 2153.
Sec. 2511(3) constitutes clear congressional recognition of the President’s power to order electronic surveillance in national security cases.
The power of the President to order electronic surveillance in national security eases has been upheld in United States v. Clay, 430 F.2d 165 (5th Cir. 1970); United States v. Butenko, 318 F.Supp. 66 (D.N.J.1970); and United States v. Dellinger, Crim. No. 69-180, N.D.Ill., 1970. It was denied in United States v. Smith, 321 F.Supp. 424, C.D.Cal. 1970.
Mr. Justice White, concurring in Katz v. United States, 389 U.S. 347, at 363-364, 88 S.Ct. 507, 518, 19 L.Ed.2d 576 (1967), said:
“In joining the Court’s opinion, I note the Court’s acknowledgment that there are circumstances in which it is reasonable to search without a warrant. In this connection, in footnote 23 the Court points out that today’s decision does not reach national security cases. Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from *677restrictions against wiretapping. See Berger v. New York, 388 U.S. 41, 112-118 [87 S.Ct. 1873, 1911-1914, 18 L.Ed.2d 1040] (1967) (White, J., dissenting). We should not require the warrant procedure and the magistrate’s judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.”
Justices Douglas and Brennan expressed contrary views, 389 U.S. at 359-360, 88 S.Ct. 507. The Supreme Court has not decided the issue. Giordano v. United States, 394 U.S. 310, 314, 89 S.Ct. 1163, 22 L.Ed.2d 297.
I regard as inapposite the case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952), which involved seizure by the President of private property in order to prevent a strike which he thought would seriously affect the economy of the country. The protection of the Government against attacks designed to overthrow it by force and violence involves an entirely different matter.
In my opinion, the surveillance in the present case was reasonable.
It has been said that wiretapping is dirty business. Professor Wigmore answered this argument:
“But so is likely to be all apprehension of malefactors. Kicking a man in the stomach is ‘dirty business’ normally viewed, but if a gunman assails you and you know enough of the French art of savatage tq kick him in the stomach and thus save your life, is that dirty business for you?” 8 Wigmore on Evidence § 2184(b), p. 50. Also 23 Ill.L.Rev. 377 (1928).
I agree that the remedy of mandamus is appropriate.
I would grant the writ and vacate the order of the District Court.
. 1096 bombings and 176 attempts were reported in tlie United States in 1970, against 549 bombings in 1969. 79 explosions were reported in January, 1971. The latest bombing was the Capitol building in Washington. U. S. News & World Report, March 15, 1971.
. This would occasion delay and involve the possibility of leaks. To require the President of the United States to have probable cause before he can investigate spies, subversives, saboteurs, fifth columnists, and traitors would effectively frustrate and prevent any meaningful investigation of these persons.
If the President was in possession of facts establishing probable cause he might never need to investigate. Even the Secretary of Labor may investigate a labor union without having probable cause. Goldberg v. Truck Drivers Local Union No. 299, 293 F.2d 807 (6th Cir.), cert. denied, 368 U.S. 938, 82 S.Ct. 379. 7 L.Ed.2d 337 (1961).