(dissenting in part).
I concur in the court’s determination that the district court did not err in concluding that the evidence used at Iva-nov’s trial was not the tainted fruit of anything heard in the electronic surveil-lances the contents of which are preserved in the first set of logs. I dissent from the majority’s conclusion that the *627tainted fruits of the electronic surveil-lances the contents of which are preserved in the second set of logs were admissible at his trial because the interceptions were lawful. While I agree with much that Judge Aldisert says in part III of his opinion with respect to 47 U.S.C. § 605, I find it difficult to accept the construction which separates the prohibition against interception from the prohibition against disclosure and which treats the latter as a mere rule of evidence. I agree with Judge Adams that if the statute applies to the executive functioning in the field of foreign affairs intelligence by its plain language, it prohibits both interception and disclosure. His analysis suggests that if it prohibits the executive from intercepting foreign affairs intelligence, it may be beyond the power of Congress. Thus he adopts a construction making § 605 inapplicable to the executive when functioning in the field of foreign affairs intelligence. That construction is as strained as Judge Aldisert’s construction.
We . . . face the fact that the plain words of § 605 forbid anyone, unless authorized by the sender, to intercept a telephone message, and direct in equally clear language that “no person” shall divulge or publish the message or its substance to “any person.” Nardone v. United States, 302 U.S. 379, 382, 58 S.Ct. 275, 276, 82 L.Ed. 314 (1937).
Judge Learned Hand had no difficulty in understanding the plain language of § 605 when in United States v. Coplon, 185 F.2d 629 (2d Cir. 1950), cert, denied, 342 U.S. 920, 72 S.Ct. 362, 96 L. Ed. 688 (1952), he applied it to interceptions for foreign affairs intelligence. Nor do I. As I read it, the statute by its plain language applied at the time of the interceptions here in issue to everyone including the President’s agents gathering foreign affairs intelligence. Obviously Congress thought as much when it amended § 605 by the enactment of § 2511(3) of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2511(3). This reading requires that I confront the constitutional limitation on congressional power postulated by Judge Adams as a reason for his interpretation. He writes:
We do not intimate, at this time, any view whatsoever as to the proper resolution of the possible clash of the constitutional powers of the President and Congress. Instead, we merely note that the absence of legislative consideration of the issue does suggest that Congress may not have intended § 605 to reach the situation presented in the present case. In the absence of any indication that the legislators considered the possible effect of § 605 in the foreign affairs field, we should not lightly ascribe to Congress an intent that § 605 should reach electronic surveillance conducted by the President in furtherance of his foreign affairs responsibilities. This would seem to be far too important a subject to justify resort to unsupported assumptions. Majority Opinion at 601.
He suggests, in other words, that had it thought of the problem Congress would have recognized that there is an executive prerogative in the field of foreign affairs intelligence which is constitutionally beyond its power.1 Thus, he reasons, we may write into § 605 an exception which is not there. I have no doubt that it was well within the power of Congress to forbid, as it did, the agents of the executive from intercepting electronic communications for any purpose, including foreign affairs intelligence. The only limitation on that power that occurs to me is the veto power of the President.
Judge Adams’ interpretation of § 605 as exempting the executive’s foreign af*628fairs intelligence agents leads him inevitably to a decision as to the extent to which the fourth amendment applies to such agents. He concludes that while the fourth amendment theoretically applies, the decisions of those agents as to what is a reasonable invasion of privacy is a matter beyond the scope of judicial review in an appropriate case. That conclusion as to the limits of the judicial power of the United States is premised upon the same executive prerogative which led him to find an exception to § 605 because of the prerogative’s apparent limitation upon congressional power. I have no do.ubt about the power of the article III courts to subject the activities in the United States of the executive’s foreign affairs intelligence agents to judicial review for compliance with the fourth amendment in an appropriate case. This is such a case, since on the present record we must assume that the executive is asking an article III court to make evidentiary use against an indicted defendant of the fruits of an invasion of privacy prohibited by that amendment.
Reinforcing my belief in the necessity for a separate expression of views is the fact that Judge Aldisert’s dissenting opinion tacitly supports the position that there is an executive prerogative in the field of foreign affairs intelligence which may be beyond the reach of those checks and balances which in one way or another limit every other power of the central government.2 A doctrine so out of keeping with our institutions of government, so potentially dangerous to the rights of privacy secured by the fourth amendment, and so capable of extension to other constitutional safeguards requires an explicit rejection.
Judicial review not only of reasonableness but even of the need for a warrant, according to the majority, is limited solely to a determination that the invasion of privacy was for the purpose of foreign affairs intelligence. The extent of the activities isolated from judicial review by the majority may be appreciated by an example not involving wiretapping. Today nothing would be more vital to the conduct of foreign affairs than accurate knowledge about which grain dealers were in touch with what foreign purchasers, or which oil companies were receiving supplies from what foreign sources. If in pursuit of that information the executive agents burglarized the offices of an international grain dealer or an international oil company without the benefit of a warrant, and found evidence of a violation of the Sherman Antitrust Act, evidence obtained in the burglary could, under the majority interpretation of the fourth amendment, be used in a criminal prosecution under 15 U.S.C. §§ 1-3, 8. The court’s role would be limited to a determination that the burglary was aimed at “the policy positions of foreign states on a broad range of international issues.” Majority Opinion at 608.
The majority’s awesome executive prerogative for gathering foreign affairs intelligence cannot be found in the text of the Constitution. Indeed, the majority opinion acknowledges as much by its rather gingerly embrace of United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936), and by paying lip service to the *629general applicability of the fourth amendment. But the holding on the fourth amendment issue, that the executive department’s decision on reasonableness of the invasion of privacy is beyond the scope of judicial review, and the suggestion that § 605, if literally applied, might be beyond the power of Congress, are necessarily predicated upon the existence of a foreign affairs executive prerogative that is either implied from the Constitution or extracon-stitutional. While in footnote 37 Judge Adams acknowledges recent scholarship casting doubt upon Justice Sutherland’s thesis of an extraconstitutional foreign affairs prerogative or its acceptance by the Supreme Court, his opinion assumes at the very least that such a prerogative is implied from the Constitution. The result of that assumption is that what is a “reasonable” invasion of privacy for the purpose of foreign affairs intelligence is subject neither to congressional control nor to judicial review. While the result follows logically from the assumed premise, for the reasons which follow I reject the premise.
Before going to those reasons, consider some things not involved in this case. Since both § 605 and the fourth amendment operate only within the territory of the United States, we are not here concerned with the activities of the executive’s foreign affairs intelligence agents operating outside that territory. But the foreign intelligence gathering activities of the executive provide a useful example negating any congressional belief that even outside the United States the President has a foreign affairs intelligence prerogative free from congressional control. In the National Security Act of 1947, ch. 343, 61 Stat. 497, and the Central Intelligence Agency Act of 1949, ch. 227, 63 Stat. 208, Congress enacted a scheme of regulation of the activities of foreign affairs intelligence agents. See 50 U.S.C. §§ 401-412. The congressional creation of the Central Intelligence Agency actually displaced an intelligence gathering agency, the Central Intelligence Group, which had been created by Executive Order. See S.Rep.No.239, 80th Cong., 1st Sess. (1947) (reprinted in U.S.Code Cong. & Ad.News 1494 (1947). These statutes do not deal with internal security and in present form exclude the agency from that area. 50 U.S.C. § 403(d)(3). They assume congressional power to deal with intelligence gathering for external security. They were enacted after the Nardone Court interpreted § 605 to apply to federal agents and after its express rejection of a general governmental prerogative exemption to § 605.3 Congress was aware of the Nardone interpretation of § 605 when it dealt with external security in the Central Intelligence Agency Act. While the statutes governing the Central Intelligence Agency are less comprehensive in regulating the extraterritorial activities of executive foreign affairs intelligence agents than many thoughtful persons might hope for, I have no doubt, and I hope the Congress has no doubt, that it is well within congressional competence to place greater limits upon even those activities.4 That, however, is not the issue in this case. Here we are dealing with activities of intelligence agents within the United States. Another matter not involved in this case is any pretense that there is an executive prerogative beyond congressional control or judicial review in matters of internal security. That pretense ended with United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). According to the Supreme Court a President in Lincoln’s position, faced with an internal insurrection, remains subject to judicial review of his agents’ compliance with the fourth amendment. But according to the majority, a peace-time President can decide, free of either congressional control or judicial review, what invasions of privacy are reasonable in the interest of his *630conduct of foreign affairs. The contrasting congressional and judicial treatment of these two matters not involved in the case — intelligence gathering outside the United States, and intelligence gathering for internal security purposes —illustrate the anomaly of the majority’s constitutional position.
The only analytical support for the majority position that there is an executive prerogative in the field of foreign affairs intelligence beyond the reach of congressional control or judicial review is Justice Sutherland’s opinion in United States v. Curtiss-Wright Export Corp., supra. While some of its sweeping language does lend such support, its holding does not.5 Its holding involved congressional action in the field of foreign affairs; namely the constitutionality of the Joint Resolution of May 28, 1934, ch. 365, 48 Stat. 811 (1934), which provided :
Resolved . . ., That if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace between those countries, and if after consultation with the governments of other American Republics and with their cooperation, as well as that of such other governments as he may deem necessary, he makes proclamation to that effect, it shall be unlawful to sell, except under such limitations and exceptions as the President prescribes, any arms or munitions of war in any place in the United States to the countries now engaged in that armed conflict, or to any person, company, or association acting in the interest of either country, until otherwise ordered by the President or by Congress.
Sec. 2. Whoever sells any arms or munitions of war in violation of section 1 shall, on conviction, be punished by a fine not exceeding $10,000 or by imprisonment not exceeding two years, or both.
Curtiss-Wright, indicted for conspiracy to violate that statute, moved to quash the indictment not on the ground that Congress had assumed too much in legislating upon the subject of foreign affairs, but on the ground that it had in § 1 delegated too much to the executive’s discretion. The problem presented to the Supreme Court was how to get out from the corner into which it had painted itself in Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L. Ed. 446 (1935) and Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935). Those cases, since largely repudiated, had held that in enacting domestic legislation Congress could not delegate legislative powers. It could only legislate in the manner set forth in the Constitution, because the Constitution was a limited surrender of sovereignty by the states. To get around Panama and Schechter Justice Sutherland concluded that while the domestic powers of the federal government were ceded to it from the states, it derived its foreign affairs powers directly from George III. Federal power over foreign affairs was plenary rather than derivative. Thus Congress could in the foreign affairs field make a delegation to the executive which in the domestic field would be unconstitutional. Professor Lofgren has amply demonstrated that the line of descent from George III to the federal government of 1934 was nowhere near as direct as Justice Sutherland suggested. Lofgren, United States v. Curtiss-Wright Corporation: An Historical Reassessment, 83 Yale L.J. 1 (1973). We can, however, for present purposes accept the proposition that federal sovereignty over foreign affairs is of an entirely different order of magnitude than over domestic affairs. But it is one thing to say that the federal government succeeded to the foreign affairs *631prerogatives of George III. It is quite another to say that those prerogatives have passed from George III to George Washington and in unbroken succession to Richard Nixon. Even granting that the foreign affairs powers of the federal government are plenary rather than derivative from the states, both the text of the Constitution and the history of its adoption make clear that those powers are subject to the same kinds of checks and balances as are all other powers of the national government.5a
Prior to the Declaration of Independence the colonies had no competence in foreign affairs. That field was a matter of English sovereignty. Under English public law the conduct of foreign affairs was entrusted to the executive rather than shared with Parliament. Blaekstone’s Commentaries on the Laws of England, completed in 1769 and well known to the founding fathers, contains an extensive exposition of the English public as well as private law. Matters which today we-would include in the general categories of foreign affairs and external security are dealt with in chapter seventh of the first book, entitled “Of the KING’S PREROGATIVE.” Blackstone lists five external6 and five domestic prerogatives.7 Reference to all of these prerogatives appears in some form or another in later American constitutional documents. As Blackstone makes clear,8 and as contemporary English constitutional practice confirms,9 these matters of the king’s prerogative were not personal to the king, but to the executive branch of the government. The government could be removed by Parliament, but it exercised the king’s prerogative while it continued in office, free from parliamentary interference. I will return to the specifics of the king’s prerogatives listed by Blackstone hereafter.
In 1774 the Continental Congress came into existence and soon took the form of a national legislative assembly. Its status as a national legislative assembly was de facto until July 4, 1776. In that de facto period the First Continental Congress tacitly assumed that the colonies were still in union with England and were seeking nothing more than domestic law reform. See, e. g., Declaration and Resolves of the First Continental Congress, October 14, 1774 in 1 Journals of the Continental Congress 63 (W. C. Ford ed. 1904). The battle of Lexing.ton on April 19, 1775 of necessity introduced a new element into the deliberations of the Cóntinental Congress. Actual war put that one legislative branch of the national government inevitably in a position, in which the British Parliament had never been, of conducting foreign affairs. See, e. g., Address of the Continental Congress to the Inhabitants of Canada, May 29, 1775 in 2 Journals of the Continental Congress 68 (W. C. Ford ed. 1905). On June 7, 1776 Richard Henry Lee introduced a tripartite resolution (1) calling for independence for the United Colonies, (2) calling for effective measures for the forming of foreign alliances, and (3) calling for preparation of a plan of confederation. Resolution for Independence, June 7, 1776, in 5 Journals of the Continental Congress 425 (W. C. Ford ed. 1906). The first resolution produced the Declaration of Independence in which the United Colonies explicitly assumed sovereignty in foreign affairs.10 The third resolution produced the Articles of Confederation, approved by Congress on November 15, 1777 and finally ratified on March 1, 1781. Foreign affairs authority was conferred by article IX on the Congress. That the framers of the Articles of Confederation were dealing with the same foreign affairs authority *632that was a matter of the king’s prerogative described by Blackstone, and with the same foreign affairs authority that in 1787 was distributed in the present Constitution, can be seen from a comparison of the three texts.
*633
*634The twelve references in the right hand column above contain all the textual references in the Constitution even arguably bearing upon the existence of an executive prerogative in the matter of foreign affairs and external security. As can be seen in the middle column, every one of them was a matter of legislative prerogative in the Continental Congress. And almost every one of them was a matter of executive prerogative in Colonial times. Significance must be attached to the distribution of these powers in the Constitution of 1787. The most significant aspect of the distribution is that there are only two instances in which the framers resorted to the model of the British Constitution. One is article II, section 3 granting the President alone the power to receive ambassadors and other public ministers. The other is article II,' section 2, clause 1 making the President commander-in-chief of the army and navy. In every other instance the former prerogatives of the Continental Congress were either retained for the national legislature or divided among the separate branches of the national government. That the Articles of Confederation and the Constitution of 1787 were dealing with the same foreign affairs and external security subject matters may be gleaned by a comparison of the virtually identical restrictions placed upon state governments by article VI of the Articles of Confederation and article I, section 10, clause 3 of the Constitution.11
The ratifying conventions must have been well aware that in Colonial times foreign affairs and external security were matters of executive prerogative and that the Congress had first assumed and then been granted these powers in their totality. The ratifying conventions must have been well aware, then, that the new constitution deliberately distributed those formerly legislative powers among the three branches of the federal government, thereby subjecting them to the system of checks and balances that was the central core of the 1787 compromise. What came back from the ratifying conventions was a series of proposals for a bill of rights which would limit the entire power of the central government, including its power in matters of foreign affairs and external security. That the bill of rights did not exempt these areas can be seen from the fact that the second amendment imposed a limitation upon congressional powers under article I, section 8, clause 16 and article I, section 10,- clause 3. It can be seen, moreover, in the third amendment:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
No reason suggests itself to me why the fourth amendment should be considered as applicable to the foreign affairs or external powers of the central government in any lesser or different manner than to all its other powers.
Since American prerogatives in foreign affairs and external security started as legislative powers, the provisions transferring some of those powers to the executive in 1787 should, it seems to me, be read narrowly rather than expansively. I cannot read into the commander-in-chief clause and the clause authorizing the President to receive (but not, without the advice and consent of the Senate, send) ambassadors any general exemption of congressional authority to *635interfere with the manner in which foreign affairs intelligence shall be gathered in the United States. Thus I have no question that Congress could, and did in § 605, prohibit anyone, including foreign affairs intelligence agents, from wiretapping. If a majority of the court were to accept that construction of § 605, we could end our inquiry at this point, leaving to another case the separate operation of the fourth amendment on such agents. Because the majority of the court does not so construe § 605, the fourth amendment issue must be decided.
The Constitution must, of course, be construed as a living document. Perhaps had the telephone been invented in 1789 the bill of rights would have dealt with it explicitly, as it dealt with quartering of soldiers and searches of houses. But while the document must today be construed in light of the events upon which it is contemporaneously brought to bear, the contemporaneous glare should not blind us to the clearly intended meaning of the text. Perhaps in the light of contemporary international power relationships the executive should be reinvested with the foreign affairs prerogatives of George III, subject only to removal upon loss of confidence by a legislative majority. That could be accomplished by a constitutional amendment, a procedure the founding fathers provided for. But the judiciary is powerless to provide the accountability to the legislature which in the British Constitution substitutes for our system of dispersal of power by virtue of checks and balances imposed by independent branches of government. The majority opinion removes the checks and balances upon executive power in the field of foreign affairs intelligence of congressional initiative and consultation and of judicial review, without restoring the alternative of accountability to the current majority in the legislature. If we must in our constitutional interpretations move with the times, let us not exchange more for less. Our political process allows for a change of the executive branch only quadrennially. As a substitute for contemporaneous political accountability the Constitution provides that the executive can act upon individuals only through the judicial power of the United States. Any time the federal executive proposes to exercise a criminal sanction against an individual it must submit to judicial review of its actions in a regular court in the regular manner. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 L.Ed. 281 (1866). In such a court, when the defendant asserts defensively that federal agents, acting for a foreign affairs intelligence purpose or for any other purpose, violated the fourth amendment, the court must independently determine whether the challenged action complied with the amendment. It cannot defer that decision in whole or in part to the executive any more than it can defer the trial of the action to a military commission.
The government urges that the reasons for invasions of privacy for external security purposes are quite different from those relied upon in enforcement of the criminal law. From this, it is urged, any kind of a warrant requirement would be impracticable. For this reason it urges that post-invasion judicial review should also be denied. I see no such inpracticability.12 It would be *636perfectly feasible for the Congress or for the courts to develop criteria as to when an invasion of privacy for the purpose of gathering foreign affairs intelligence should be permitted. In Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L.Ed.2d 930 (1967), for example, enforcement of the criminal law was not at stake and specific probable cause was not determinable, and yet the Supreme Court was able to develop special criteria for when privacy could be invaded for an administrative search. The task is no more formidable here. It would be perfectly feasible to centralize applications for such warrants in a central court at Washington or in a limited number of courts so as to minimize security problems. The criteria for permitting court authorized invasions of privacy in the name of external security need not be identical to those applicable to criminal law enforcement. Nor need the criteria for emergency exceptions be identical. In each of the intrusions upon less than traditional notions of probable cause which the Supreme Court has suggested or approved,13 emphasis has been placed on the limited nature of the invasion. Thus a warrant might appropriately issue when the invasion was for eavesdropping rather than for a physical seizure or an intrusive trespatory search. But at a minimum the criteria chosen should protect persons from invasions of privacy when their possible relationship with any source of foreign affairs intelligence information is entirely fanciful, protect persons from invasions of privacy when the possible relationship of the information sought to a legitimate foreign affairs concern is entirely fanciful, and protect persons from invasions far in excess of the legitimate need.
There are, of course, invasions in which it is clear that the zone of privacy sought to be pierced will be highly likely to produce significant information, but which no court could legitimately order. These include, for example, violations of public international law by the entry of embassies. No doubt in some instances the executive operating on a principle of necessity will violate public international law, and the fourth amendment as well, by making such an invasion without a warrant. Probably the political process is the only effective limitation upon such perceived necessities. But if acting on some principle of necessity the executive commits such an invasion, then he must either forego the assistance of the courts in criminal law enforcement or submit to the full scope of judicial review that the fourth amendment requires. He cannot by causing the courts to use the fruits of his violation of public international law and of the fourth amendment make them his accomplice after the fact. The majority reacts:
“It would be unfortunate indeed if, as Judge Gibbons seems to suggest, the President must act illegally to perform his constitutional duties. Yet, if *637the President must act secretly and quickly to investigate an attempt by a foreign agent to obtain important intelligence information, such a result may follow under Judge Gibbons’ analysis.” Majority Opinion at 605.
This is as gross a distortion of my position as it is of the Constitution. The majority expressly refrains from determining whether there was an emergency need for hasty action which might have excused the necessity for a warrant — a matter the Court ordinarily decides— and expressly refrains from deciding whether there was an overwhelming need for secrecy in this instance. It defers to the executive. I would subject the President’s decision to judicial review. In most instances his agents could obtain a warrant. In some instances the decision to forego a warrant because of exigent time circumstances would be approved by the courts. The only instance where executive action could not be approved by the courts would be where there were no exigent circumstances or where no court could legally have issued a warrant. The majority finds a constitutional Presidential duty to act, nevertheless, in violation of public international law and of the fourth amendment. If there is such a duty it is not imposed by the Constitution. If the President acts in response to what he perceives to be some higher-duty he must be vindicated elsewhere than in the article III courts.
On the present record at this stage we do not know whether any of the fruits of the second set of surveillances was used at the trial. Since I would hold that those surveillances violated both § 605 and the fourth amendment, I am confronted with a problem that both Judge Adams’ opinion and Judge Aldi-sert’s opinion find unnecessary to discuss. That problem is the effect, if any, in this case of 18 U.S.C. § 3504. When this case was before the Supreme Court, the government contended that the surveillance records should first be submitted to the trial judge, who in an ex parte in camera proceeding would first determine if any of the information obtained in the surveillance was “arguably relevant” to Ivanov’s conviction. Only if the district court made a finding of “arguable relevancy” would the government be required to disclose the surveillance records to the defendant or his attorney. A majority of the Court rejected that result and ruled:
Although this may appear a modest proposal, especially since the standard for disclosure would be “arguable” relevance, we conclude that surveillance records as to which any petitioner has standing to object should be turned over to him without being screened in camera by the trial judge. Alderman v. United States, 394 U.S. 165, 182, 89 S.Ct. 961, 971, 22 L.Ed.2d 176 (1968).
Thereafter the district court complied with the Supreme Court’s mandate with respect to what we have referred to as the first set of logs. But because it concluded that the second set of logs reflected legal surveillances, it did not allow inspection of these. While the case was pending Congress enacted Section 702 of the Organized Crime Control Act of 1970, Pub.L. No. 91-452, 84 Stat. 935 (codified at 18 U.S.C. § 3504). That statute provides:
(a) In any trial, hearing, or other proceeding in or before any court
(2) disclosure of information for a determination if evidence is inadmissible because it is the primary product of an unlawful act occurring prior to June 19, 1968, or because it was obtained by the exploitation of an unlawful act occurring prior to June 19, 1968, shall not be required unless such information may be relevant to a pending claim of such inadmissibility ; . . .
Thus § 3504(a) (2) adopts, for unlawful interceptions which occurred prior to June 19, 1968, the position advanced by the government and rejected by the Supreme Court in this ease that the trial *638judge may make an ex parte in camera determination of relevancy.14 Section 703 of Pub.L. No. 91-452 makes § 3504(a) (2) applicable “to all proceedings, regardless of when commenced, occurring after the date of its enactment [October 15, 1970].” Thus Congress intended § 3504(a)(2) to apply to proceedings in this case occurring after October. 15, 1970. Since I would remand for determination of taint with respect to the second set of surveillance records, it is also necessary to decide whether that determination should be made in compliance with the statute or in compliance with the Supreme Court’s mandate.
Absent the statute it is clear that a lower court must follow the law of the case announced by the Supreme Court. E.g., United States v. Haley, 371 U.S. 18, 83 S.Ct. 11, 9 L.Ed.2d 1 (1962); Sibbald v. United States, 37 U.S. (12 Pet.) 488, 9 L.Ed. 1167 (1838); cf. Butcher & Sherrerd v. Welsh, 206 F.2d 259 (3d Cir. 1953), cert, denied, 346 U.S. 925, 74 S.Ct. 312, 98 L.Ed. 418 (1954). Thus the statute confronts us with the question whether Congress has the power to change the law of the case in a case remanded from the Supreme Court. It' also confronts us with the question whether in rejecting the ex parte in camera determination of arguable relevancy the Supreme Court was announcing a rule of criminal procedure or a constitutional rule of due process. For whatever congressional power there may be over the law of the case, there is no congressional power to revise the Supreme Court’s interpretation of the Constitution.
My research has uncovered no case in which the Supreme Court has ever considered whether Congress has the power to change the law of the case in a remanded case. Some guidance can be found in Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 18, 14 L.Ed. 249 (1852), 59 U.S. (18 How.) 421, 15 L.Ed. 435 (1855). Belmont Bridge was a case in the Supreme Court’s original jurisdiction. It entered an injunction directing the dismantling of a bridge across the Ohio river as an obstruction of a navigable stream. Before the decree was carried out Congress passed a statute “[t]hat the bridges across the Ohio River . . . are hereby declared to be lawful structures in their present positions and elevations, and shall be so held and taken to be, anything in the law or laws of the United States to the contrary notwithstanding.” 59 U.S. (18 How.) at 429. The Court determined that Congress had the constitutional power to pass a law permitting a bridge across a navigable stream. It vacated the injunction. The case recognizes that the Supreme Court will apply a law changing the law of the case in a case pending before it. In United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871), the court distinguished the Belmont Bridge case when it held unconstitutional a statute which purported to deprive it of jurisdiction to decide the effect to be given to a Presidential pardon any way except as directed in the statute. The Court in Klein said:
We must think that Congress has inadvertently passed the limit which separates the legislative from the judicial power. 80 U.S. (13 Wall.) at 147.
I do not read Klein as laying down any prohibition against Congress legislating the law to be applied in a pending ease. The problem was that it attempted to lay down a rule of decision on a question of constitutional law, in that case the effect to be given to a Presidential pardon. If, then, the Supreme Court’s ruling that the Court may not make an ex parte determination of possible relevance is not a constitutional decision, it would seem that it would follow Belmont Bridge rather than Klein and apply § 3504(a)(2). Neither Belmont Bridge nor Klein enlighten on the question of a *639conflict between the Court’s mandate to a lower court and a subsequent statute, since in both instances the effect to be given to the statute was determined in the highest Court.
The only case ever to consider such a conflict in a lower court context, so far as my research has been able to uncover, is Banco Nacional de Cuba v. Farr, 383 F.2d 166 (2d Cir. 1967), cert, denied, 390 U.S. 956, 88 S.Ct. 1038, 20 L.Ed.2d 1151 (1968). In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923, 11 L.Ed.2d 804 (1964), the Supreme Court reversing the Second Circuit, held that the act of state doctrine applied to prevent the lower court from examining the validity under international law of an expropriation by the Cuban government. The case was remanded to the district court to hear and decide any litigable issues of fact and for proceedings consistent with its opinion. Before final judgment in the remanded case Congress passed the Hick-enlooper Amendment to the Foreign Assistance Act of 1964, Pub.L. No. 88-633, § 301(d)(4), 78 Stat. 1013 (codified, as amended, at 22 U.S.C. § 2370(e)), which provided:
Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine to make a determination on the merits giving effect to the principles of international law in a case in which a claim of title or other right is asserted by any party including a foreign state (or a party claiming through such state) based upon (or traced through) a confiscation or other taking after January 1, 1959, by an act of that state in violation of the principles of international law . . . . ”
The amendment in effect overruled the principle of the federal common law of international relations announced by the Supreme Court. The Second Circuit concluding that the amendment was intended to apply to pending litigation, was faced with the identical problem before us — a conflict between the Court’s mandate and the statute. Judge Waterman wrote:
“The Supreme Court mandate rule is nothing more than one specific application of a general doctrine appellate courts apply to their orders to lower courts, a doctrine commonly referred to as the law of the case, see Briggs v. Pennsylvania R. R., 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948); Ex Parte Sibbald v. United States, 37 U.S. (12 Pet.) 488, 492, 9 L.Ed. 1167 (1838). Other courts in applying the law of the case rule have held that a lower court is not bound to follow the mandate of an appellate court if the mandate is, in the interim, affected by an authority superior to the court issuing the mandate, such as by a higher appellate court, either state or federal, see, e. g., Higgins v. California Prune & Apricot Grower, Inc., 3 F.2d 896 (2 Cir. 1924); Zerulla v. Supreme Lodge O. of M.P., 223 Ill. 518, 79 N.E. 160 (1906); Jones v. Harmon, 122 Ohio St. 420, 172 N.E. 151 (1930); American R. Exp. Co. v. Davis, 158 Ark. 493, 250 S.W. 540 (1923); Orleans Dredging Co. v. Frazie, 179 Miss. 188, 173 So. 431 (1937) or by an en banc decision of the same court, Poe v. Illinois Cent. R. R., 339 Mo. 1025, 99 S.W.2d 82 (1936). This principle has also been applied when the mandate of the court is affected by intervening statutory enactment, Petty v. Clark, 113 Utah 205, 192 P.2d 589 (1948); Donaldson v. Chase Securities Corp., 216 Minn. 269, 13 N.W.2d 1 (1943), aff’d 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945); cf. Danforth v. Groton Water Co., 178 Mass. 472, 59 N.E. 1033 (1901); Albanese v. McGoldrick, 129 N.Y.S.2d 269 (Sup.Ct.1954). The same principle should apply here; any limiting language in the Supreme Court mandate should not preclude judicial application of the Amendment in this case for the rule of law expressed by *640the mandate has been affected by a subsequently enacted federal statute.
. Moreover, as the court below may have indicated, 243 F.Supp. [957] at 971, there may well be a constitutional objection to an application of the mandate here. The law of the case is not based on any constitutional authority but is only a doctrine of judicial administration based on the practice of the courts, Messenger v. Anderson, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152 (1912); King v. State of West Virginia, 216 U.S. 92, 100, 30 S. Ct. 225, 54 L.Ed. 396 (1910). A federal statute, on the other hand, is an assertion of its constitutional power by Congress and is entitled to respect as the supreme law of the land.' U.S. Const, art. VI, cl. 2. It is questionable whether the courts may frustrate such a statute by interposing a judge-made rule of practice.
Thus we hold that Congress intended that the Hickenlooper Amendment should apply to cases pending at the time of its enactment, including this case.” 383 F.2d at 178.
While no other case has considered the precise issue, a closely analogous issue is discussed in Lennig v. New York Life Ins. Co., 130 F.2d 580 (3d Cir. 1942). In a post-Erie diversity case it was contended on remand that an authoritative pronouncement of Pennsylvania law inconsistent with the mandate of the Third Circuit had been made by a Pennsylvania court. Judge Jones wrote:
“If, as the learned trial judge apprehended, the later decision in the Whigham case [Whigham v. Metropolitan Life Ins. Co., 343 Pa. 149, 22 A. 2d 704] interpreted the law of Pennsylvania differently than we had perceived it to be in our earlier opinion, then the court below was quite right in applying to the retrial of this ease the rule if and as made plain subsequently by binding state court decision. This is necessarily so. The duty resting upon a federal court, in appropriate circumstances, is to ascertain and apply local law and not to make it. But, where a federal court of appeals in a given case has ascertained and applied what it apprehends to be the pertinent state law, such ascertainment of the local law is binding upon the trial court at the retrial of the case unless it is clearly made to appear by subsequent statute, no more than declaratory, or by binding state court decision that the law of the state was other than what the federal appellate court had understood it to be.” 130 F.2d at 581.
The quotation is dictum since this court found no inconsistency between the Pennsylvania case relied on and its earlier mandate. But it suggests that the rule in this circuit, as in the Second Circuit, is that the law of the case announced in an appellate court’s mandate yields to a different pronouncement of law by a body having substantive lawmaking competence.
A partisan of judicial review is tempted to embrace the broader reading of United States v. Klein, supra, suggested in Judge Seitz’ opinion. I resist that temptation, however, for the application of the Klein rule to nonconstitutional rules of decision would involve the same error with respect to the powers of the judicial branch as the majority commits with respect to the powers of the executive branch. The statute involved in Klein was the last effort by the Radical Republicans in Congress to prevent the Court by a constitutional decision from interfering with congressional reconstruction. Klein must be read in conjunction with Ex parte McCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1869) and Ex parte Yerger, 75 U.S. (8 Wall.) 85, 19 L.Ed. 332 (1869). By 1872 the fourteenth and fifteenth amendments had been ratified and it became feasible for the Klein Court to fence off the constitutional turf which it had surrendered in McCardle and reclaimed with inconclusive results, because the case was settled, in Yerger. The Court *641was on perfectly sound ground in asserting that it, not Congress, was the final arbiter of the meaning of the Constitution. It was on equally sound ground in asserting that the legislature could not dictate to a court what facts could ■ be found. But an assertion that because a case is sub judice the legislature is deprived of legislative competence in a matter otherwise the proper subject of legislation is a violation of the principle of separation of powers. The judicial branch no less than the executive and the legislative, has limited powers under the Constitution.
Thus I conclude that unless the decision of the Supreme Court on the ex parte determination of arguable relevance is a decision of constitutional law, we should apply § 3504(a)(2) rather than the mandate.
Examining that part of Justice White’s opinion of the Court dealing with the in camera examination issue does not suffice to determine whether the Court was laying down a due process requirement or a rule of criminal procedure. He speaks of the superiority of adversary proceedings as a means for obtaining justice in cases where an issue must be decided on the basis of a large volume of factual materials. 394 U.S. at 183-185, 89 S.Ct. 961. He carefully avoids any mention of fifth amendment due process or sixth amendment assistance of counsel. None of the other opinions in the case suggest that he rejected the ex parte in camera device on constitutional grounds. How' much we can deduce from silence is problematical. But a good starting point for interpreting the opinion is the fact that the dispute over the electronic surveillances in no way affects the integrity of the fact-finding process. The exclusionary rule involves the implementation of a judicial policy against becoming involved as accessories to the government’s lawlessness and of deterring such lawlessness in the future. It excludes perfectly reliable evidence. Thus an error by the district judge in an ex parte in camera examination of the logs would in no way prejudice the defendant on the issue of his guilt or innocence. Cf. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Brinegar v. United States, 338 U.S. 160, 172-173, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). From this, and Justice White’s silence, I conclude that he announced a rule of criminal procedure rather than a rule of constitutional law. This being so I would direct the district court on remand to make the taint determination in the first instance pursuant to 18 U.S.C. § 3504(a)(2), and to disclose only such part of the second set of surveillance records as it finds may be relevant to the evidence used at the trial.
. Nardone v. United States, supra, expressly rejected any general governmental prerogative exemption to § 605. 302 U.S. at 383, 58 S.Ct. 275. Compare with 1 W. Blackstone, Commentaries on the Laws of England 261 (5th ed. 1773), which explains that “the king is not bound by any act of parliament, unless he be named therein by special and particular words.”
. Judge Aldisert writes, at 622-623,
It is beyond question that the President, as Chief Executive, possesses certain powers and responsibilities which are not dependent upon a specific legislative grant from Congress, but derive from the Constitution itself. This principle was announced as early as Marbury v. Madison, 1 Cranch (5 U.S.) 137, 165-166, 2 L.Ed. 60 (1803) :
By the Constitution of the United States the President -is invested with certain important political powers, in the exercise of which he is to use his own discretion, and ia accountable only to his country in his political character, and to his own conscience.
United States v. Belmont, 301 U.S. 324, 328, 57 S.Ct. 758, 760, 81 L.Ed. 1134 (1937), held that “the conduct of foreign relations was committed by the Constitution to the political departments of the government, and the propriety of what may be done in the exercise of this power [is] not subject to judicial inquiry or decision.” (footnotes omitted).
. See note 1 supra.
. Of. War Powers Resolution, Pub.L. No. 93-148, 87 Stat. 555 (1973) ; International Agreements — Transmission to Congress, Pub.L. No. 92 — 403, 86 Stat. 619 (1972) (codified at 1 U.S.C. § 112b).
. “United States v. Curtiss-Wright Corp., 299 U.S. 304, [57 S.Ct. 216, 218, 81 L.Ed. 255,] involved, not the question of the President’s power to act without congressional authority, but the question of his right to act under and in accord with an Act of Congress.” Youngstown Steel & Tube Co. v. Sawyer, 343 U.S. 579, 635 n. 2, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1951) (Jackson, J., concurring) .
. See the thorough analysis of the relevant historical materials in Bestor, Separation of Powers in the Domain of Foreign Affairs: The Intent of the Constitution Historically Examined, 5 Seton Hall L.Rev. 527 (1974).
. 1 W. Blackstone, Commentaries on the Laws of England 253-61 (5th ed. 1773).
. Id. at 261-80.
. E.g., id. at 250, 333-35.
. See E. Wade & G. Phillips, Constitutional Law 160, 173-74 (6th ed. 1960).
. “[T]hese United Colonies . . . have full Power to levy War, conclude Peace, Contract Alliances . . . .” Declaration of Independence, July 4, 1776.
. An opinion is not the appropriate place to set forth all the evidence from the debates in the Convention of rejection of the British model of executive power. The remarks of James Wilson of Pennsylvania, later a Justice of the Supreme Court, are sufficiently typical. Madison quotes him:
“He did not consider the Prerogatives of the British monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace & c.” 1 Farrand, The Records of the Federal Convention 65-66 (1911) (Madison’s notes).
As the text makes clear, Wilson’s view prevailed in the Convention.
. Carefully circumscribed relaxation of the traditional fourth amendment probable cause and reasonableness standards in response to strong governmental and public needs is not a novel task for the Supreme Court. When confronted with the need for municipal fire, health and safety inspections, the Court sanctioned issuance of warrants without a showing of probable cause that a particular dwelling contained a violation, but rather only upon satisfaction of reasonable legislative and administrative standards for conducting an inspection of the area in which the dwelling is located. The Court observed that such inspections are neither personal in nature nor aimed at discovery of evidence of a crime, and thus they involve a relatively limited invasion of privacy. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) ; See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). In the “stop and frisk” cases. *636the Court again used a balancing test to justify an investigatory stop and a carefully limited search for weapons by a police officer on less than probable cause. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) ; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Court lias also suggested that detentions for the sole purpose of fingerprinting, under narrowly defined circumstances, may “comply with the Fourth Amendment even though there is no probable cause in the traditional sense.” The much less serious intrusion upon personal security, the need to be detained only once, the inherent reliability and reduced opportunity for abuse, and the nondestructibility of fingerprints which provides sufficient time to obtain a warrant, are all urged as justifications. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed. 2d 676 (1969). In each of these situations, when confronted with a compelling public need to invade personal privacy, tlie Court did not choose to classify the challenged conduct as outside tlie scope of judicial review but rather chose to maintain judicial control over these necessary activities by devising specially tailored “probable cause” requirements.
. See cases cited in note 12 supra. See also United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) ; Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970).
. See H.R.Rep. No. 91-1549, 91st Cong. 2d Sess. (1970) (reprinted in 2 U.S.Code Cong. & Ad.News, 4027 (1970), explaining that an ex parte in camera procedure was intended.